RAJENDRA Vs. PARAPPA

JUDGEMENT

(1.) This writ petition is directed against the impugned order passed on I.A. No. 4 in O.S. No. 131/2007 by the Civil Judge, Banahatti, whereby the said application filed by the petitioner- plaintiff under Order XXVI Rule 9 CPC seeking appointment of Court Commissioner was rejected by the trial Court.

(2.) The material on record indicates that the petitioner- plaintiff instituted the aforesaid suit against the respondents/ defendants for recovery of possession of the suit schedule immovable property and for other reliefs. The said suit is being contested by the respondents-defendants. After completion of evidence, the petitioner-plaintiff filed the instant application seeking appointment of a Court Commissioner under Order XXVI Rule 9 CPC and the same having been opposed by the respondents-defendants, the trial Court proceeded to pass the impugned order rejecting I.A.No.4 aggrieved by which the petitioner is before this Court by way of the present writ petition.

(3.) A perusal of the material on record including the impugned order will clearly indicate that the trial Court has failed to consider and appreciate the specific contentions urged by the petitioner-plaintiff that the respondents-defendants had encroached upon the suit schedule property to an extent of 17 guntas which compelled the plaintiffs to file the suit. The trial Court also failed to appreciate that there was a serious dispute regarding identity and location of the suit schedule property which warranted appointment of a Court Commissioner to conduct local inspection. The trial Court also committed an error in coming to the conclusion that there was no necessity to appoint a Court Commissioner without appreciating that since there were rival claims and contentions as regards the alleged encroachment as well as identity and location of the suit schedule property as alleged by both sides, it was essential for appointment of a Court Commissioner to conduct local inspection and submit his report which would be required for the purpose of adjudication of the issues in controversy between the parties.