SHANTHARAJU Vs. P. PALANI SWAMY AND ORS.

JUDGEMENT

(1.) The petitioner in both the cases is common who was arrayed as defendant No. 2 in O.S. Nos. 1210 & 1212 of 2004 on the file of the II Additional Civil Judge (Jr. Dn.), Bangalore Rural District, Bangalore. Being aggrieved by the rejection of I.A. No. X filed under Order XXVI Rule 9 of CPC, the petitioner has filed these writ petitions.

(2.) The respondents in these writ petitions have filed a suit seeking for permanent injunction restraining the defendants therein from interfering with the peaceful possession and other reliefs. In the plaint, they have contented that the suit schedule property was purchased from Sri. A.B. Goutham in the year 2001. The vendor of the plaintiffs purchased the property in question from one Sri. Anthonyappa, who is the first defendant in the suit, in the year 1992. Since then, the plaintiffs are in possession of the property. However, the second defendant claiming interest over the property and also claiming that he is the lawful owner of the property has filed the written statement. He has also filed the application under Order XXVI Rule 9 CPC in both the suits to appoint the Assistant Director of Land Records as a Court Commissioner to survey the property and to give a report. The trial Court rejected the said application on the ground that the application has been filed during the chief examination of PW -1 and held that the Court Commissioner cannot be appointed to collect the evidence and the parties to the suit has to establish their right on the basis of the oral and documentary evidence. Accordingly, dismissed the application filed by the second defendant. Being aggrieved by the same, these two writ petitions have been filed.

(3.) Sri. R.A. Devanand, learned advocate appearing for the petitioner contended that the orders passed by the trial Court is contrary to law. Order XXVI Rule 9 CPC provides for appointment of Court Commissioner at any stages of the proceeding to make local investigation and in a suit for bare injunction also the contesting defendant can file an application for appointment of Commissioner. The trial Court without taking into consideration the provision of CPC in proper perspective, dismissed the application filed by the second defendant and he sought to allow these writ petitions by setting aside the orders passed by the trial Court.