KRISHNAMURTHY M. S/O. LATE SRI D.R. MADHAVAKRISHNAIAH Vs. K. NARAYANASWAMY , S/O. KALASAPPA AND CORPORATION OF CITY OF BANGALORE, REPRESENTED BY ITS COMMISSIONER

JUDGEMENT

(1.) THE Petitioner has filed suit against the Respondents and others for declaration, possession and injunction. The suit has been contested by fifing written statement. Issues were framed and trial of the suit is complete. After the suit was posted for hearing of arguments, the Petitioner filed I.A. No. 2 under Order 26 Rule 9 Code of Civil Procedure to appoint a commissioner to make local inspection and to submit the report. The 1st Respondent/3rd Defendant filed statement of objections and opposed LA No. 2. The trial court has dismissed LA No. 2 by observing that,

(2.) SRI S.P. Shankar, learned senior advocate appearing for the Petitioner contended that, neither the provisions in Section 75 nor Order 26 Code of Civil Procedure stipulate or indicate or even suggest the stage at which the application is to be filed or granted by the courts. Reference was made to the decision in the case of B. Jagannath Vs. N.C. Narayanappa and Another, AIR 1982 Kant 233 to contend that, under Rule 9 of Order 26 Code of Civil Procedure, power is conferred on the court for appointment of a commissioner for local inspection in order to better appreciate the evidence which is already on record. My attention was also invited to the decision in the case of Miss Renuka D/o Ramakrishna Reddy Vs. Sri Tammanna S/o Dyawappa Battal and Others, AIR 2007 Kant 133 to point out that, after completion of the evidence of both the sides, if it is found that there is an ambiguity in the evidence adduced by the parties, then only the court may appoint a commissioner for the purpose of clarification of such an ambiguity. It was contended that, the view taken by the trial court is irrational and opposed to the ratio of law in the said decisions.

(3.) SRI S.N. Prashanth Chandra, learned Counsel appearing for the 2nd Respondent took me through the record of the writ petition and submitted that, the appointment or otherwise of a commissioner in exercise of the power under Rule 9 of Order 26 read with Section 75(b) Code of Civil Procedure being discretionary, in view of the refusal of the trial court to allow LA No. 2, no interference is called for.