BHAJARANG VITHOBA MANE Vs. MAHADEV LAXMAN KADAM

JUDGEMENT

(1.) This petition by the defendant in OS No.228/2006 on the file of learned Principal Civil Judge and JMFC, Athani, is directed against the impugned order dtd. 7/12/2016 passed on IA No.17, whereby application filed by the petitioner/defendant under Order XXVI Rule 9 of CPC seeking appointment of Court Commissioner to conduct local inspection of the suit schedule properties, was rejected by the trial Court.

(2.) The material on record discloses that the respondents/plaintiffs instituted the aforesaid suit against the petitioner/defendant for declaration, permanent injunction and other reliefs in relation to the suit schedule properties. The said suit is being contested by the petitioner/defendant. After completion of evidence of both sides, the petitioner/defendant filed instant application IA No.17 seeking appointment of Court Commissioner to conduct local inspection of suit schedule properties and submit a report. The said application having been opposed by the respondents/plaintiffs, the trial Court proceeded to pass the impugned order rejecting the application. Aggrieved by the same, the petitioner is before this Court by way of present writ petition.

(3.) A perusal of the impugned order will indicate that the sole ground on which the trial Court rejected the request of the petitioner/defendant to appoint the Court Commissioner was that there was no dispute with regard to nature and character of the suit schedule properties, which is contrary to the pleadings, evidence and contentions of the parties, which makes it clear that the appointment of Court Commissioner was necessary to elucidate the issue in controversy between the parties. Further, the impugned order passed by the trial Court is contrary to the well settled principles governing the appointment of Court Commissioner to conduct local inspection as enunciated by this Court in the case of Shadaksharappa Vs. Kumari Vijayalaxmi & Others,2023 (3) Kar.L.J. 543. Under these circumstances, since no prejudice would be caused to either of the parties if Court Commissioner is appointed to conduct local inspection, particularly, when they have opportunity to file their respective memo of instructions as well as objections to the Court Commissioner's report and to examine/cross-examine him, if they so desire, I am of the considered opinion that the impugned order passed by the trial Court rejecting the application has resulted in miscarriage of justice warranting interference by this Court.