Karnataka High Court
Sri N Raveendra vs Smt A R Pavitra on 4 January, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4th DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.24421 OF 2021 (GM-CPC)
BETWEEN:
SRI N RAVEENDRA
S/O LATE NAREPPA
AGED ABOUT 49 YEARS, PETTY SHOPKEEPER
3RD CROSS, CHOWDAREDDIPALYA
CHINTAMANI - 563 125.
...PETITIONER
(BY SRI. KALYAN R, ADVOCATE)
AND:
SMT A R PAVITRA
W/O R VISHWANTH
KANAMPALLI NORTH, BANGALORE ROAD
CHINTAMANI - 563 125.
...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED 26.10.2021 ON I.A.NO.II
FILED UNDER ORDER 26 RULE 9 OF CPC IN
O.S.NO.82/2017 PASSED BY THE ADDITIONAL CIVIL
JUDGE AND JMFC AT CHINTAMANI AS PER ANNEXURE-A
TO THE WRIT PETITION AND CONSEQUENTLY TO ALLOW
THE APPLICATION IA NO.II FILED BY THE PETITIONER
UNDER ORDER 26 RULE 9 OF CPC.
2
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner being aggrieved by the order
dated 26.10.2021 passed on I.A.No.II in
O.S.No.82/2017 has filed the present writ petition.
2. Brief facts leading rise to filing of this petition
are as under:
The petitioner has filed a suit in O.S.No.82/2017
for the relief of perpetual injunction restraining the
respondent from interfering with the petitioner's
peaceful possession and interference of the suit site or
in any way trespassing into the suit site. The
respondent filed written statement. The Trial Court
framed the issues. When the matter was set for
plaintiff's evidence, the petitioner/plaintiff filed an
application under Order XXVI Rule 9 of CPC seeking
for appointment of Court Commissioner for local
inspection of the suit property for reporting the
existing state of affairs etc. The respondent filed
objection to the said application. The Trial Court after
hearing the parties rejected the application. Hence,
this writ petition.
3. Heard learned counsel for petitioner and
learned counsel for respondent.
4. Learned counsel for the petitioner submits
that if a Court Commissioner is appointed, the entire
dispute between the parties could be resolved and the
same does not amount to collection of evidence.
Hence, he submits that the trial Court has committed
an error in rejecting the application solely on the
ground that if the Court Commissioner is appointed,
that amounts to collecting the evidence. Hence, on
these grounds, he prays to allow the writ petition.
5. Perused the records and considered the
submissions made by learned counsel for the
petitioner.
6. From the perusal of the records it is clear
that there is a dispute regarding the suit property.
The respondent in his written statement took a
contention that the petitioner is a stranger to the suit
property and he has no manner of right, title or
interest over the suit property. In the light of the said
assertion made by the respondent, the
petitioner/plaintiff has made the application to appoint
the Court Commissioner to ascertain the stage of the
foundation.
8. In this background, it is pertinent to refer to
the provisions of Order 26 Rule 9 of CPC :
"9. Commissions to make local
investigations.- In any suit in which the
Court deems a local investigation to be
requisite or proper for the purpose of
elucidating any matter in dispute, or of
ascertaining the market-value of any property,
or the amount of any mesne profits or
damages or annual net profits, the Court may
issue a commission to such person as it thinks
fit directing him to make such investigation
and to report thereon to the Court.
Provided that, where the State
Government has made rules as to the persons
to whom such commission shall be issued, the
Court shall be bound by such rules. "
From the perusal of the above said provision, it
is clear that Court may issue a commission for the
purpose of investigating any dispute when the lis
between the parties cannot otherwise be effectively
adjudicated. In the present case, the petitioner has
not yet commenced evidence. The matter is posted
for petitioner's evidence. Without adducing evidence
or completing the evidence, the petitioner has filed
the application for appointment of commissioner. This
Court in the case of MISS RENUKA vs. SRI
TAMMANNA AND OTHERS reported in ILR 2007 KAR
3029 wherein in paragraph 7 it is held as follows :
"7. It is settled position of law that Court
Commissioner cannot be appointed to collect
evidence in support of a claim. After
completion of evidence on both the sides, if it
is found that there is any ambiguity in the
evidence adduced by the parties, then the
Court may appoint a Commissioner for the
purpose of clarification of such an ambiguity.
In the instant case the evidence is not yet
commenced and therefore, the question of
ambiguity in the evidence will not arise at this
stage. The Trial Court without considering the
settled position of law committed an error in
passing the impugned order appointing a Court
Commissioner. On this ground the impugned
order is liable to be quashed."
10. In view of the law laid down by this Court in
the aforesaid judgment, it is clear that the Court
Commissioner cannot be appointed before completion
of evidence. After completion of evidence on both
sides, if it is found that there is any ambiguity in the
evidence adduced by the parties then, the Court may
appoint a Commissioner for the purpose of clarification
of such ambiguity. In the instant case, as trial has not
yet commenced, the application filed by the petitioner
is premature. The trial Court was justified in rejecting
the application filed by the petitioner. I do not find
any ground to interfere with the impugned order.
Hence, the writ petition is dismissed. However liberty
is reserved to the petitioner to make such application
if necessary after completion of evidence on both
sides.
SD/-
JUDGE
rs
