SRIDHAR SHETTY Vs. NARAYANA NAIKA

JUDGEMENT

(1.) THIS petition is by the respondents in R. A. No. 52/90. The respondent herein is the appellant in the said R. A. and also the plaintiff in the suit. Suit in O. S. No. 121 of 1988 is filed by the respondent in the Trial Court seeking a relief of declaration and consequential relief of permanent injunction against the petitioners who are the defendants in respect of plant 'b' schedule properties. After due contest, the said suit was decreed in part. The respondent aggrieved by the said judgment and decree has filed an appeal in R. A. No. 52/90 on the file of the Principal civil Judge (Senior Division), Udupi. The bone of contention between the parties appears to be a certain strip of land where certain trees are situate of which the respondent claims to be the owner. During the pendency of the suit, a sketch Ex. P. 7 was marked. The learned Trial judge was of the opinion that in the absence of the Commissioner's report, Ex. P. 7 cannot be looked into nor acted upon. This observation made by the learned Trial Judge prompted respondent to file an application I. A. No. 2 under Order 26, Rule 9 of the Civil Procedure code, 1908 for appointment of a Commissioner so as to demarcate the land and to show where actually the trees are situate. The said application was seriously opposed by the petitioners herein on several grounds. It was submitted before the learned Appellate Judge that the application is filed after a lapse of nearly four years. It was also' submitted that by filing this application for appointment of a commissioner it would amount to procuring of additional evidence as contemplated under Order 41, Rule 27 of the CPC. In the absence of any justifiable ground for production of additional evidence, the application under Order 26, Rule 9 of the CPC cannot be entertained. The sum and substance would be that the Commissioner's report will have to be treated as additional evidence and unless justifiable grounds are made out in the application incorporating the ingredients of Order 41, Rule 27 (1) (aa) the present application is not maintainable. The learned Trial judge has accepted the application for appointment of Commissioner. The learned Appellate Judge is also aware that the application under order 26, Rule 9 for appointment of a Commissioner can be treated as additional evidence, but however was of the opinion that the appeal is a continuation of the suit and the provisions which are applicable to suit are also applicable to appeal. The learned Appellate Judge was also of the opinion that this is a fit case where the application is to be granted. Insofar as report of the Commissioner is concerned, the learned appellate Judge was also alive to the situation that it cannot be considered at the threshold but will have to be considered at the final disposal of the appeal. The impugned order passed by the Appellate court is produced at Annexure-A.

(2.) MR. Sampath Anand Shetty, learned Counsel appearing for the petitioner reiterated what was submitted before the learned Appellate judge. He would once again emphasise that unless the ingredients of order 41, Rule 27 (l) (aa) are satisfied, the question of entertaining an application under Order 26, Rule 9 is impermissible. He would further submit that in the grounds of memorandum of appeal, the respondent had clearly stated that non-examination of the person who measured the property is fatal and that the suit sketch was produced at Ex. P. 7. The sum and substance is that on the basis of these two grounds he would submit that the respondent was aware as to why this Ex. P. 7 was not considered by the learned Trial Judge. In these circumstances, he submits that it cannot be said that despite exercise of due diligence, the commissioner could not be appointed. To buttress his contention he has relied on a judgment of this Court in Ghaleppa (dead) by L. Rs and others v Gundeppa (dead) by L. Rs and a decision in Pappayee Ammal v subbulakshmi Ammal and Another.

(3.) MR. Santosh Mane for Mr. A. Ananda Shetty, learned Counsel appearing for the respondent would support the order passed by the learned Trial Judge.