P.S. CHIDANANDAMURTHY Vs. BASAVARAJ

JUDGEMENT

(1.) PETITIONER is the plaintiff in O.S. No. 64/2010 on the file of the Civil Judge and JMFC, Kadur, being aggrieved by the order dated 15 -4 -2014 allowing I.A. No. 9 filed under Order 26 Rule 9 of CPC has filed this writ petition.

(2.) THE plaintiff filed a suit seeking for permanent injunction restraining the defendant from interfering with the peaceful possession and also other reliefs. In the plaint, it was contended that the suit schedule property was purchased by the plaintiff as per the registered sale deed dated 14 -07 -2006. However, the defendant is interfering with his peaceful possession. In view of that, the plaintiff filed the suit. The defendant entered appearance and filed written statement denying the averments made in the plaint with regard to interfering with the peaceful possession and contended that the plaintiff has encroached upon 6 guntas of land and constructed a shed therein. The defendant filed O.S. No. 46/2010 restraining the plaintiff from putting up shed and hence, the plaintiff is not entitled for any relief and sought for dismissal of the suit. On the basis of the pleadings of the parties, the Trial Court framed necessary issues. The parties went for trial. During the trial, the defendant filed I.A. No. 7 under Order 26 Rule 9 of CPC to appoint the Taluk Surveyor as the Court Commissioner to visit the spot namely plaint schedule property to measure the same with reference to the Revenue and Survey records and to submit a report. The plaintiff objected the said application contending that the suit filed by the plaintiff is for bare injunction. In the said suit, the Commissioner cannot be appointed for collecting the evidence. The defendant has to prove his case on the basis of the oral and documentary evidence and sought for dismissal of the said application. The Trial Court after considering the matter in detail, by its order dated 16 -2 -2013 rejected the said application holding that the Court Commissioner cannot be appointed to collect the evidence, since there is no allegation with regard to encroachment by the defendant. The said order has become final. Thereafter on 11 -09 -2013, the defendant made one more application in I.A. No. 9 under Order 26 Rule 9 of CPC to appoint the Surveyor of the Revenue Department as Court Commissioner to inspect the plaint schedule property and to verify whether the plaintiff is in possession of the property to an extent of land more than which he has purchased and to submit a report. The plaintiff filed objections to the said application contending that the application I.A. No. 7 filed by the defendant has already been rejected on 16 -2 -2013 and the defendant cannot file one more application under the same provision and the application filed by the defendant is hit by the provisions of res -judicata and the Commissioner cannot be appointed to collect the evidence and sought for dismissal of the application.

(3.) SRI . B.S. Sachin, learned counsel appearing for the petitioner contended that the order passed by the Trial Court is contrary to law. The plaintiff had purchased 24 1/2 guntas of land in Sy. No. 37/1A1 situated at Pillenahalli village, Sakarayapatna Hobli, Kadur Taluk. However, the defendant tried to encroach upon his property. Hence, he filed a suit. Infact, O.S. No. 46/2010 filed by the defendant was also dismissed by the Trial Court. Apart from that the defendant has made a counter claim. During the course of trial, I.A. No. 7 filed by the defendant for appointment of a Court Commissioner to measure the plaint schedule property and to submit a report was rejected by the Trial Court on 16 -02 -2013, on the ground that the Commissioner cannot be appointed to collect the evidence and the parties have to prove their case on the basis of the oral and documentary evidence. Within seven months, one more application I.A. No. 9 has been filed invoking the very same provision of law. While rejecting I.A. No. 7, the court has not reserved any liberty to the defendant to file a fresh application for appointment of Court Commissioner. Hence, the defendant cannot maintain one more application for the same cause of action. The Trial Court had misread and misunderstood the case of the defendant and passed the order which is contrary to law.