ADI CHUNCHANAGIRI EDUCATION TRUST Vs. DODDEGOWDA

JUDGEMENT

(1.) THE first respondent - plaintiff filed a suit for permanent injunction and consequential reliefs. During the pendency of the suit, petitioner ­ defendant no.1, filed an application under Order ­ 26, Rule ­ 9, read with Section ­ 151 of C.P.C., seeking appointment of Commissioner to inspect the suit schedule property. THE Trial Court vide the impugned order, rejected the application. Hence, the present petition.

(2.) THE learned counsel for the petitioner contend that the impugned order is bad in law and liable to be set-aside and that the appointment of a Commissioner is just and necessary for the final adjudication of the suit. That the Trial Court committed an error in rejecting the application.

(3.) IT is for the plaintiff to prove his case and not the defendants. Moreover, the Trial Court has also held that there is no dispute with the parties regarding encroachment of the properties and if a Commissioner is appointed, it would certainly amount to collection of evidence, which is not permissible. Under these circumstances, appointment of a Commissioner at the behest of the petitioner is wholly not uncalled for, as the burden to prove the case is certainly not on the defendants. Hence, I do not find any error committed by the Trial Court that calls for interference.