Karnataka High Court
Smt. Josephine D Souza vs Augustine D Souza on 17 February, 2023
Bench: C.M. Poonacha
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WP No. 55801 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
WRIT PETITION NO. 55801 OF 2017 (GM-CPC)
BETWEEN:
1. SMT. JOSEPHINE D SOUZA
W/O LATE PHILIP D SOUZA,
ABED ABOUT 50 YEARS
R/AT BOLLA HOUSE,
BAJAL POST, MANGALORE-575007
D.K.DISTRICT
...PETITIONER
(BY SRI. SHARATH P HANAMAREDDY, ADVOCATE FOR
SRI SACHIN B S, ADVOCATE)
AND:
1. AUGUSTINE D SOUZA
S/OLATE LOUIS D SOUZA,
Digitally signed R/AT BOLLA HOUSE,
by RAMESH
MATHAPATI AGED ABOUT 67 YEARS
Location: High R/AT BALLA HOUSE
Court of BAJAL POST, MANGALORE-575007
Karnataka D.K.DISTRICT
...RESPONDENT
(BY SRI. P.M.NAYAK, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD 25.11.2017 IN I.A.NO.3 IN O.S.NO.1052
OF 2017 ON THE FILE OF IST ADDL CIVIL JDUGE AND JMFC
MANGALORE VIDE ANNX-A.
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WP No. 55801 of 2017
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioner
and the learned counsel for the respondent.
2. The petitioner who is the defendant
before the trial court has challenged the order
dated 25.11.2017 passed on IA.No.III filed in
O.S.No.1052/2017. The said IA.No.III has been
filed by the respondent - plaintiff under Order
XXVI Rule 9 of the Code of Civil Procedure, 1908
('CPC' for short) for appointment of Commissioner.
3. The respondent/plaintiff has filed a suit
for injunction, which is contested by the
petitioner/defendant.
4. The plaintiff has filed I.A.No.III in the
said suit. The said application was opposed
by the defendant. The trial court by
WP No. 55801 of 2017
order dated 25.11.2017, allowed I.A.No.III and
ordered for appointment of court commissioner.
Being aggrieved, the present writ petition is filed.
5. It is vehemently contended by the
learned counsel for the petitioner that the court
commissioner has been appointed before
commencement of trial and that a commissioner
cannot be used for collecting evidence. In support
of his submission, he relies on the judgment
passed by the Co-ordinate Bench of this court in
RENUKA VS. TAMMANNA reported in
LAWS(KAR)2007 6 31.
6. Per contra, counsel for the respondent /
plaintiff submits that the case being one of
encroachment, despite various attempts made by
the plaintiff for getting survey done, because the
defendant has not co-operated for the same. He
further submits that the trial court having
appreciated the case of the parties, has allowed
WP No. 55801 of 2017
the application for appointment of commissioner
which is not liable to be interfered with by this
Court.
7. I have considered the submissions made
by the learned counsel for the parties and perused
the materials available on record.
8. The trial court vide its order dated
25.11.2017, while considering IA No.III, has
noticed that the property of the defendant is
situated on the northern side of the plaint schedule
property, which is 15 feet higher. It further
noticed the allegation that the defendant is trying
to put up barbed wire fence by encroaching into
the plaint schedule property. It is further noticed
that the cause of action for filing of the suit is
when the defendant forcibly entered into the plaint
schedule property and began to dig for erecting
stone pillars in the land of the plaintiff. The
WP No. 55801 of 2017
allegation of encroachment has been denied by the
defendant.
9. Having regard to the case of the parties
as appreciated by the trial court it is clear that the
issue for adjudication before the trial Court being
one of alleged encroachment, a report by a
commissioner from the spot will enable proper
adjudication of the dispute by the trial court.
10. No doubt, in the case of Renuka (supra),
this court has observed that a court commissioner
cannot be appointed to collect evidence and it is
only after completion of evidence if there is any
ambiguity in the evidence adduced by the parties,
commissioner may be appointed, it is necessary to
note that a case like the present nature where
encroachment is alleged, appointment of
commissioner and a report submitted in that behalf
would facilitate the Court to adjudicate upon the
matter effectively.
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11. This court, in the case of Sri
Shadaksharappa v. Kumari Vijayalaxmi and
others [W.P.NO.201274/2022, disposed off on
24.1.2023], considered the necessity of
appointment of commissioner at various stages has
laid down elaborate guidelines. In the said
judgment it has been noticed that there is no bar
in the Code of Civil Procedure for appointment of
commissioner, prior to evidence.
12. It is a settled proposition of law that the
commissioner's report is only a piece of evidence
and the same is required to be considered by the
court along with other evidence placed on record
by the parties.
13. Learned Counsel for the Petitioner
vehemently contends that no opportunity has been
afforded to the Petitioner to file his objections to
the said application. It is forthcoming from the
impugned order that the Trial Court heard the
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counsel for the defendant before orders were
passed.
14. Notwithstanding the fact that no
opportunity has been afforded to the
Petitioner/Defendant to file his objections to IA.III,
it is always open to the Defendant to furnish a
memo of instruct-tions at the time of execution of
the Commissioner's warrant and once the report is
submitted, it shall always be open to the
Defendant to contest the report on its merits.
15. Having regard to aforementioned, the
trial court having rightly appreciated the facts, has
ordered for appointment of commissioner. The
report of the commissioner will aid the court in
adjudicating the issue that arises for consideration
and would also prevent voluminous evidence being
adduced by each of the parties to prove their
respective contentions.
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16. In the absence of any demonstrable
hardship or prejudice that will be caused to the
defendant, no ground is made out to warrant
interference by this Court in exercise of its
extraordinary jurisdiction under Article 227 of the
Constitution of India.
17. Hence this Writ Petition fails and
accordingly is rejected.
No costs.
Sd/-
JUDGE
KMV
