NANDEESH Vs. VANAJAKSHMAMMA AND ORS.

JUDGEMENT

(1.) THE 1st defendant in O.S. No. 165/2008 on the file of Additional Civil Judge and JMFC, Kollegala, has called in question the common order dated 12th March 2013 allowing I.A. No. 4 under Order XXXIX Rule 7 of CPC and I.A. No. 6 under Order VI Rule 17 of CPC while dismissing I.A. No. 5 under Section 151 of CPC, in so far as it relates to I.A. Nos. 4 and 5.

(2.) RESPONDENTS 1 to 4 instituted O.S. No. 165/2008 arraigning petitioner as 1st defendant and 5th respondent as 2nd defendant, inter -alia, alleging construction of a building by encroaching upon plaintiffs' suit 'B' schedule property, hence the relief to declare as illegal the construction and for mandatory injunction, as also permanent injunction. That suit was opposed by filing written statement of the defendants, inter -alia, denying the allegations. After the plaintiff was examined as a witness, it appears that respondents 1 to 4 (plaintiffs) filed I.A. No. 4 under Order XXXIX Rule 7 of CPC to appoint a Commissioner to "ascertain the compliance of construction works by the defendants by measuring plaintiffs' schedule property". In the affidavit accompanying the application, it was stated that the defendants were very eager to put up further construction with an intention to trouble the plaintiffs and to fulfill their sinister purpose and that appointment of a Commissioner to ascertain the genuineness of the version of the defendants was a necessity, who would give a clear picture of the construction under taken by the defendants. At paragraph 5 it was stated that the application was filed with good intention and not for any other purpose of collecting evidence. In addition it is stated that it is inevitable to obtain the report of the Court Commissioner in respect of measurement of plaint schedule property and for other "accessory purpose". That application was opposed by filing statement of objections. In addition, petitioner filed I.A. No. 5 under Section 151 of CPC stating that if at any time it was found that he had encroached upon the property belonging to plaintiffs, he would dismantle that portion of the construction. That application was opposed by the 1st plaintiff stating that the application is not maintainable and that with mala fide intention to put up permanent construction violating the set back rules, the statement is made undertaking to demolish the construction. It was further alleged that construction of basement is contrary to the licence and affects the easementary rights of the plaintiffs and that there being no sanction of a building plan, defendant continued to put up construction unauthorizedly.

(3.) SRI D.S. Hosmath, learned counsel for petitioner is correct in his submission that Order XXXIX Rule 7 of CPC, though provides for making an order for detention, preservation or inspection of any property which is subject matter of any suit, nevertheless, is not a substitute to Order XXVI Rule 9 of CPC for appointment of a Court Commissioner to measure the property and fix the boundaries. The very nomenclature of Rule 7 would indicate that inspection of any property subject matter of the suit does not take into its fold appointment of a Court Commissioner to measure the suit property of both plaintiff and defendant and submit a report over whether there is, in fact, an encroachment as alleged by the plaintiff against the defendant, since that would be more than in the nature of collecting evidence which is impermissible.