IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY 2017 BEFORE THE HON’BLE MR.JUSTICE JAYANT PATEL WRIT PETITION NO.59136/2016 (GM-CPC) BETWEEN:
SRI.ASHWIN KUMAR S/O BYRAPPA AGED ABOUT 58 YEARS, R/O NO.23, VIVEKANANDA ROAD YADAVAGIRI, MYSURU-570020 ...PETITIONER (BY SRI.THONTADHARYA.R.K, ADVOCATE) AND:
MR.T.P.PUTTASWAMY AGED ABOUT 96 YEARS R/O NO.42, I MAIN ROAD YADAVAGIRI, MYSURU-570020 ...RESPONDENT THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DT.10.3.2016 PASSED ON I.A.NO.VI IN O.S.NO.40/2012 ON THE FILE OF I ADLL. FIRST CIVIL JUDGE AND JMFC AT MYSORE AT ANNX-E.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER The present petition is directed against the order dated 10.03.2016 passed by the Trial Court whereby the application for appointment of the Court Commissioner has been rejected.
2. I have heard Mr.Thontadharya R.K., learned Counsel for the petitioner.
3. It is well settled that the appointment of the Court Commissioner cannot be made to create any evidence against any party to the proceedings. However, the learned Counsel appearing for the petitioner attempted to contend that the since the sketch was earlier produced in the suit proceeding but has not been permitted to be marked in the evidence, in order to find out as to whether encroachment is made or not, the appointment of the Commissioner was required and therefore the application was preferred.
4. He submitted that the Trial Court has not properly considered the scope and ambit of Order XXVI of The Code of Civil Procedure, 1908, for appointment of the Commissioner and hence this Court may interfere.
5. As such, exercise of the power under Order XXVI of the CPC for appointment of Commissioner is a discretionary power. The evidence of both the sides are over and at that stage the application has been made by the petitioner which in effect results into collecting the evidence which is not permissible as per the settled legal position. The Trial Court has also not found that the appointment of the Commissioner is required for adjudication of the dispute in the suit proceedings. It cannot be said that there is any error of jurisdiction or the view taken is perverse which may call for interference in exercise of the power under Article 227 of the Constitution.
6. Under the circumstances, no case is made out for interference. Hence the petition is dismissed. However, it is observed that the rights and contentions of both the sides in the suit for denial of the marking of the sketch produced shall remain open to be considered in accordance with law.
Sd/- JUDGE JT/-