HELEN VICTORIA MENEZES Vs. PREMALATHA

JUDGEMENT

(1.) The defendant in O.S.No.801/2019 on the file of the VI Additional Civil Judge (Jr.Dn.), Hassan (hereinafter referred to as 'trial Court' for short) has filed this writ petition challenging the order dtd. 18/1/2020, by which, an application filed by the plaintiff for appointment of a Commissioner for local inspection, was allowed.

(2.) A suit in O.S.No.801/2019 was filed for perpetual injunction to restrain the defendants from putting up any construction on the northern side of the suit property. The plaintiff claimed that the defendant was the owner of the property on the northern side of her property and that the defendant was putting up construction in absolute violation of the building plan and license without leaving any set back. The suit was contested by the defendant who claimed that she was the owner of the property bearing No.HIG-19 at KHB Colony, Kuvempunagara Extension, Hassan. She claimed that she obtained license and permission for the construction from the Competent Authority and that the construction made by her is lawful and within the property owned by her. An application filed by the plaintiff for interim injunction was rejected. Thereafter, the plaintiff filed an application under Order XXVI Rule 9 of the Code of Civil Procedure (hereinafter referred to as 'CPC' for short) to appoint a Commissioner for local inspection to ascertain whether the construction put up by the defendant was in accordance with the plan as claimed by her in her written statement. The trial Court after noticing that the request of the plaintiff was innocuous, allowed the same in terms of the order, which is impugned in this writ petition.

(3.) Learned counsel for the defendant submitted that allowing the application filed under Order XXVI Rule 9 of CPC even before the trial commenced, could amount to collection of evidence, which is impermissible in a suit for perpetual injunction. She further submitted that the application for interim injunction filed by the plaintiff was rejected and the application for appointment of a Court Commissioner was an attempt to revive the application for interim injunction. She invited the attention of the Court to the memo of instructions filed by the plaintiff and contended that the memo of instructions had far-reaching consequences, which could not have been permitted by the trial Court.