Karnataka High Court

Sri. S. V. K. Patil vs Manjunath. C. J on 24 November, 2023

Author: S.G.Pandit

Bench: S.G.Pandit

                                               -1-
                                                          NC: 2023:KHC:42534
                                                         WP No. 2362 of 2023




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 24TH DAY OF NOVEMBER, 2023

                                            BEFORE

                            THE HON'BLE MR JUSTICE S.G.PANDIT

                         WRIT PETITION NO. 2362 OF 2023 (GM-CPC)

                   BETWEEN:

                   SRI. S. V. K. PATIL
                   S/O VEERANNA
                   AGED ABOUT 52 YEARS
                   R/AT SIDDARAMANAHALLI VILLAGE
                   MATHIGATTA POST KASABA HOBLI
                   KADUR TALUK
                   CHIKKAMAGALURU DIST -577548
                                                                ...PETITIONER
                   (BY SRI. LOKESH B., ADV.)


                   AND:

Digitally signed   1.    MANJUNATH. C. J.
by A K                   S/O LATE JAGADISH C L
CHANDRIKA                AGED ABOUT 57 YEARS
Location: HIGH           R/AT VENKATESHWARA NAGARA
COURT OF
KARNATAKA                NEAR GOVT. PRIMARY SCHOOL
                         KADUR TOWN
                         CHIKKAMAGALURU DIST. -577548.

                   2.    SRI SHARADAMMA
                         W/O LATE MALLIKARJUNAPPA C L
                         AGED ABOUT 42 YEARS

                   3.    UMA
                         D/O LATE MALLIKARJUNAPPA
                         AGED ABOUT 42 YEARS
                         R/AT 24 JANANIN, 2ND CROSS
                               -2-
                                              NC: 2023:KHC:42534
                                          WP No. 2362 of 2023




     NEAR VISMAYA MEDICALS
     MUTHYALA NAGARA
     MATHIKERE, BENGALURU -560054.

4.   CHAYA
     D/O MALLIKARJUNAPPA

     RESPONDENT NO.2 TO 4 ARE
     R/AT 24, JANANIN 2ND CROSS
     NEAR VISMAYA MEDICALS
     MUTHYALA NAGARA
     MATHIKERE, BENGALURU -560054.
                                                 ...RESPONDENTS
(BY SRI. GURURAJ. R., ADV. FOR R1
 R2 TO R4- SERVICE OF NOTICE IS D/W
 V.C.O. DT:02.02.2023)

     THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS, SO AS TO SET ASIDE THE IMPUGNED ORDER
DATED 21/01/2023 PASSED BY THE 2ND ADDITIONAL CIVIL
JUDGE AND JMFC AT KADUR IN O.S. NO. 510/2017 IN IA
NO.10 AT ANNEXURE-C.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

                          ORDER

Though the matter is listed for hearing in

interlocutory application, with the consent of learned

counsel for the parties, the matter is taken up for final

disposal.

The petitioner, defendant No.1 in O.S.No.510/2017

on the file of II Additional Civil Judge and JMFC at Kadur is

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before this Court, questioning the order dated 21/01/2023 on

I.A.No.10, allowing application filed under Order XXVI Rule 9 of

CPC appointing Court Commissioner.

2. Heard learned counsel Sri.Lokesh B for petitioner and

Sri.Gururaj R., learned counsel for respondent No.1. Perused

the writ petition papers.

3. Learned counsel for the petitioner would submit that the

suit of the respondent/plaintiff is one for declaration of 'B'

schedule property as part and parcel of 'A' schedule property

and for possession of 'B' schedule property from the first

defendant in favour of the plaintiff. Learned counsel for the

petitioner would submit that on completion of plaintiff's

evidence, when the suit was set down for evidence of D.W.1,

the respondent/plaintiff filed I.A.No.10 under Order XXVI Rule 9

of CPC praying to appoint Taluk Surveyor as Court

Commissioner to measure the properties of the plaintiff and

defendant No.1 and to note the encroachment of 'A' schedule

property. Learned counsel would contend that the trial Court

committed an error in allowing the said application appointing

Taluk Surveyor as Commissioner even before parties completed

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their evidence. Learned counsel would submit that if the

Commissioner is appointed before completion of evidence of the

parties, it would amount to collecting evidence through Court

Commissioner. Learned counsel would submit that the

petitioner/defendant has no objection for appointment of

Commissioner after completion of evidence of the parties.

Further, learned counsel would submit that, the purpose for

which, appointment of Commissioner is sought in the

application would not be permissible. Thus, it is prayed for

allowing the writ petition and to set aside the impugned order

appointing Taluk Surveyor as Court Commissioner.

4. Per contra, learned counsel Sri.Gururaj for respondent

No.1 would support the order passed by the trial Court and he

would submit that the case of the respondent/plaintiff is that

the respondent has encroached the portion mentioned in 'B'

schedule and to find out encroachment and its extent, the

respondent/plaintiff has filed the application seeking

appointment of Court Commissioner to survey and find out

encroachment. Thus, he submits that the trial Court rightly

allowed the application and prays for dismissal of the writ

petition.

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5. Having heard the learned counsel for the parties and

on perusal of the writ petition papers, I am of the view

that the trial Court is justified in allowing the application

for appointment of Court Commissioner and appointing

Taluk Surveyor as Commissioner.

6. The suit of the respondent/plaintiff is one for

declaration of 'B' schedule property is part and parcel of 'A'

schedule property and for possession. It is the main

allegation of the respondent/plaintiff that 'B' schedule

property is encroached portion within 'A' schedule

property. To find out the encroachment, the respondent/

plaintiff filed I.A.No.10 to appoint Taluk Surveyor as

Commissioner which is rightly allowed by the trial Court.

7. Order XXVI Rules 9 and 10 of CPC provides for

appointment of Commissioner at any stage of the

proceedings to elucidate any matter in dispute between

the parties. Where there is allegation of encroachment,

any amount of oral or documentary evidence would not be

sufficient to prove the encroachment. But to appreciate

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the allegation of encroachment, getting report from the

Court Commissioner would assist the Court.

8. A co-ordinate bench of this Court in

W.P.No.201274/2022 disposed of on 24.01.2023 had an

occasion to consider Order XXVI Rules 9 and 10 of CPC.

Relevant paragraphs 11, 12, 13, 14 and 21 of the said

judgment reads as follows:

"11. The appointment of a Commissioner for local inspection, or scientific/forensic investigation/expert's opinion is indeed to secure the evidence and the same is not only permissible but also desirable in certain cases. The report, given the intrinsic complexities of matter in a case, may go a long way in arriving at a just decision or assisting the court to appreciate the other evidence on record or fact situation in a proper perspective. If the report of the Commissioner is nothing to do with the subject matter in dispute, then there cannot be an order appointing the Commissioner. Order appointing a Commissioner can be made only if the Commissioner's report becomes a relevant piece of evidence. That being the position, the contention that the appointment of court Commissioner amounts to collection of evidence has no merit.

12. Under the provisions applicable for local inspection what is impermissible is the delegation of adjudicating power. To cite an example, if both parties claim to be in possession of the disputed property, the local inspection by the Commissioner cannot be ordered to ascertain the possession. The question of

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possession is to be decided by the court. However, if one party alleges encroachment by another and another party denies such allegation, the Commissioner can be appointed to ascertain whether there is encroachment or not. In such a situation the Commissioner is appointed to find out the nature of possession. The report based on local inspection will be a handy tool to decide the case relating to encroachment. In the case on hand, the petitioner to prove his assertion of encroachment, instead of leading oral evidence of witnesses has applied for local inspection, and the same is not only permissible but also desirable.

13. The next question is, at what stage of the proceeding in a suit, the application can lie? As could be easily noticed from the provision, the provision is not 'stage' centric. Thus the provision can be invoked either before the commencement of the trial or after. If the application is filed before the commencement of the trial, the court having regard to the pleadings and records may allow such application before the commencement of the trial. For example, in a given case, if the report is necessary for consideration of an application seeking some interim measure, before the commencement of the trial, the Commissioner can be appointed, if the case is made out for a such appointment. On the other hand, again, having due regard to the pleadings and records, if the court finds that there is every likelihood that after recording the evidence of the parties, the need to appoint the court Commissioner may not arise or that the court is of the view that it can take a call on the application, only after recording the evidence, then it may defer the order on the application till such time. Thus the decision as to when the report of the Commissioner is to be secured must be taken having due regard to the facts and circumstances.

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14. The discretion, though lies with the court, as to appoint the Commissioner before the trial or after the trial, the decision must be taken with due regard to the possibility of reducing or eliminating the need to record the oral evidence of witnesses to prove an issue which could be effectively decided with the aid of the report. More often than not, in disputes relating to the existence of pathway, stream, pond, well, or disputes relating to the boundary between adjoining holders, encroachment, easement of air and light, construction of building in violation of setback rules, or relating to the authenticity of a document, signature/thumb impression to name a few by way of illustration, a report secured before the trial may cut short the trial in as much as the party relying upon the report may not examine multiple witnesses to prove the matters covered by the report. The party may simply rest his case based on his evidence and the report. In a given case, the appointment of the Commissioner before the commencement of the trial may facilitate a focused trial. In the case of Bhimappa Rayappa Chougala v. Shrikant, 2014 SCC OnLine Kar 12277 : (2014) 2 KCCR 1652 at page 1653, the Co-Ordinate Bench of this court has held as under :

"4. xxx Only if the plaintiffs can show that the defendants have encroached upon their property, they would be entitled to the relief. Any amount of oral evidence is not a substitute or sufficient to prove the encroachment. To cut short the litigation to reduce recording evidence, the trial Court in its wisdom, thought it fit to appoint a Commissioner even before the commencement of the trial. That is how the duration of the litigation could be curtailed and speedy disposal of the civil matter could be achieved."

At paragraph 21 of the order, the co-ordinate bench has observed under what circumstances

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appointment of Commissioner is provided under Order XXVI, which are as follows:

"21.Having examined the provisions referred to above and given the fact that Order XXVI of the Code of Civil Procedure is often invoked in the trial Court, this Court is of the view, broadly speaking in the following cases, the appointment of an appropriate Commissioner as provided under Order XXVI of the Code is desirable.