IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION NO.46484 OF 2016 (GM-CPC) Between:
Shanthakumar, C.N.Shanthakumar, S/o.Late Naganna, Aged about 55 years, Occupation: Agriculturist, Resident of Chandahalli, Madapura Village, Kerehalli Hobli, Kenchanahalla Post, Hosanagara Taluk-577 418, Shivamogga District. …Petitioner (By Sri.S.V.Prakash, Advocate) And:
1. Raju, S/o. Neeli Chowdanaika, Aged about 42 years, Occupation : Agricultural Coolie, 2. Nagappa, S/o. Neeli Chowdanaika, Aged about 59 years, Occupation : Agricultural Coolie, Respondents 1and 2 are R/o. Modahagalu in Lakuvalli Village, Gilalagundi Post, Anandapura Hobli, Sagara Taluk-577 401, Shivamogga District. …Respondents (By Sri.H.Jayakara Shetty, Advocate) This Writ Petition is filed under Article 227 of the Constitution of India praying to set aside the Order dated 14.7.2016 passed by the learned Principal Civil Judge & JMFC, Sagar on I.A.No.4 in O.S.No.172/2012 appointing an advocate and Taluk Surveyor as Court Commissioner to conduct local inspection of the suit schedule property produced at Annexure-F to the WP and etc., This Writ Petition coming on for Orders, this day, the Court made the following:
ORDER Heard the petitioner’s counsel and the respondents counsel.
2. The petitioner is the plaintiff in O.S.No.172/2012 on the file of Prl. Civil Judge (Jr. Dn.), Sagar, Shimoga. The defendants filed an application I.A.No.4 under Order 26 Rule 9 read with 151 of CPC for appointment of Commissioners – an advocate and Taluk Surveyor for the purpose of spot inspection and measurement of properties of the plaintiff/defendants. The trial Court granted this application and hence, this Writ Petition challenging the said order.
3. The learned counsel for the petitioner submits that after recording of evidence of the plaintiff was over and before commencement of the defendants evidence, the application for appointment of Commissioner was filed by the defendants. If the very purpose of filing the application is for collection of evidence, the trial Court should not have allowed the said application. If at all defendants are in possession, it must be proved by other evidence and not by getting a Commissioner appointed.
4. The learned counsel for respondents argues that the trial Court has exercised its discretion for appointment of the Commissioners and there is no reason to interfere with the same.
5. It is well established principle that Commissioner cannot be appointed for collection of evidence. That apart, in a suit for permanent injunction it is for the plaintiff to prove his possession on the date of suit or otherwise suit cannot be decreed. If according to the defendants, plaintiff is not in possession they can rebut the evidence of plaintiff. The impugned order shows that the Commissioner was appointed at a stage even before the commencement of the defendants evidence. Even the purpose for which Commissioner has been appointed shows that Commissioner has to give the report with regard to possession. I do not think for this purpose a Commissioner can be appointed. Though appointment of Commissioner is discretionary power of the Court, it has to be exercised judiciously. Therefore, I find that impugned order cannot be sustained. Hence writ Petition is allowed. The impugned order dated 14.07.2016 passed on I.A.No.4 is set aside and the application is dismissed.
6. However, this order does not come in the way of plaintiff or defendants to get a Commissioner appointed once again if the facts and circumstances so require.
Sd/- JUDGE NS