@JUDGMENTTAG-ORDER
L. Narasimha Reddy, J.@mdashThe petitioner filed O.S. No. 141 of 2004 in the Court of Junior Civil Judge, Kollapur against the respondents in
relation to an immovable property. She obtained an order of temporary injunction against the respondents. The respondents filed I.A. No. 306 of
2004 under Order 18 Rule 18 C.P.C. requesting the Court to undertake a personal inspection. It was alleged that taking advantage of the order of
temporary injunction, the petitioner herein is making constructions to prevent access to a public well. The petitioner resisted the application stating
that she has not undertaken any construction around the well and that she has taken steps only to prevent interference by the respondents herein.
An objection was raised as to the very maintainability of the petition.
2. On a consideration of the rival contentions of the parties, the trial Court found that it was not a case for undertaking inspection by the Court
itself. However, through its order, dated 14.10.2004, the Trial Court appointed an Advocate Commissioner to make local inspection of the suit
schedule property and to submit a report. The same is challenged in this revision.
3. Smt. Madhavi Devi, learned Counsel for the petitioner, submits that the inspection to be undertaken by a Judge in exercise of powers under
Rule 18 of Order 18 C.P.C. is very rare and it is only in exceptional cases, that too, when the Court itself is satisfied that such an inspection can be
undertaken. She also contends that the power under the said provision is to be exercised by the Court on its own accord and the parties to the
proceedings do not have any right to insist on such inspection. She urges that once the trial Court did not find it to be a fit case for undertaking
personal inspection, the only consequence ought to have been to dismiss the application and there did not exist any justification for appointing an
Advocate Commissioner.
4. Sri K. Ranga Rao, learned Counsel for the respondents, on the other hand, submits that it is in the discretion of the Court, either to conduct
inspection by itself or to appoint an Advocate Commissioner and no exception can be taken to the order under revision.
5. The respondents filed IA No. 306 of 2004 under Rule 18 of Order 18 C.P.C. A perusal of that provision discloses that it confers upon the
Court the power to inspect any property or a thing concerning which any question arises in the suit. Such inspection can be undertaken at any stage
of the suit. There is no indication in this rule that a party to the proceedings can insist the Court to undertake such inspection by filing an application.
The exercise is to be taken by the Court on its own accord and on being satisfied about the necessity. Therefore, the very filing of application
requesting the Court to undertake the inspection by itself cannot be said to be tenable.
6. Be that as it may, the trial Court entertained the application and recorded a finding that it is not a fit case for undertaking such inspection. The
matter ought to have ended there. The trial Court, however, proceeded to treat the application as one under Order 23 C.P.C. and appointed an
Advocate Commissioner. Though, sometimes it is permissible for the Courts to treat an application filed under one provision as the one under a
different provision, much would depend on the similarity of the object and nature of considerations in dealing with such applications. It cannot be
said that the purpose underlying inspection by the Court by itself under Order 18 C.P.C. and submission of a report by the Commissioner
appointed by the Court under Order 23 C.P.C. on the other hand are similar. By conducting an inspection by itself, the Court gains first hand
knowledge about the matter, and the observations made therein or findings recorded are not subject to any rebuttal. On the other hand, the report
submitted by an Advocate Commissioner is subject to objections raised by an aggrieved party and the report at the most constitutes one of the
materials to be considered. It cannot carry any conclusiveness with it.
7. In that view of the matter, the approach of the Trial Court in appointing the Advocate Commissioner in the instant case cannot be sustained. The
civil revision petition is accordingly allowed and the order under revision is set aside. There shall be no order as to costs.
