Appointment of Advocate Commissioner -- Delay of Ten Years in Filing Application -- Delay reckoned from necessity, not date of suit, application allowed
(i) Civil Procedure Code, 1908, O.26 R.9 -- Appointment of Advocate Commissioner -- Reckoning of Delay in Filing Application -- Delay in filing a petition for appointment of an advocate commissioner is not to be ascertained from the date of filing of the suit, but from the date on which the necessity for filing such petition arose. (ii) Civil Procedure Code, 1908, O.26 R.9 -- Appointment of Advocate Commissioner -- Delay of Ten Years Not a Ground for Dismissal -- A delay of ten years in filing an application for appointment of an advocate commissioner cannot by itself be a ground for dismissal, where the appointment would aid in appreciating evidence in proper perspective and is not sought for the purpose of gathering evidence. (iii) Civil Procedure Code, 1908, O.26 R.9 -- Appointment of Advocate Commissioner -- Restriction Against Recording Possession or Gathering Evidence -- An advocate commissioner cannot be appointed to note down who is in possession and enjoyment of the property, or for the purpose of gathering evidence. (iv) Civil Procedure Code, 1908, O.26 R.9 -- Appointment of Advocate Commissioner -- Permissible Purpose in Suit for Injunction -- An advocate commissioner may be appointed in a suit for injunction to note physical features and to localize or demarcate the property, to assist the court in understanding the local situation. Such action does not amount to collection of evidence, and appointment for this purpose remains discretionary based on necessity. (v) Civil Procedure Code, 1908, O.26 R.9 -- Appointment of Advocate Commissioner -- Application to Prove Existence of Structure -- Where a petitioner seeks appointment of an advocate commissioner to prove the existence of a structure pleaded in the plaint, such purpose does not amount to gathering evidence or noting possession and enjoyment of the property, and the application is rightly allowed.
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