NARAYANASWAMY Vs. ANUSUYAMMA

JUDGEMENT

(1.) The petitioner is before this Court under Article 227 of the Constitution of India challenging the order dated 28.02.2018 on I.A.No.3 in O.S.No.6987/2017 on the file of City Civil Court, Bengaluru.

(2.) The petitioners are defendants and the respondent is plaintiff in O.S.No.6987/2017, which is filed for permanent injunction against defendants in respect of suit schedule land bearing survey No.5 measuring 1 acre 5 guntas situated in Basavanapura Village, K.R. Puram Hobli, Bengaluru East Taluk.

(3.) On service of suit summons, the defendants appeared in the suit and filed their written statement. In the written statement, they contended that the suit schedule property is cemetery and they are using it as cemetery for very long. The identity of the suit schedule property is also disputed by the defendants. The plaintiff filed an application under Order 39, Rule 1 and 2 of CPC seeking temporary injunction against the defendants. The exparte order of injunction is granted. On appearance of defendants and filing objection, when matter was at the stage of hearing on the said I.A for injunction, the plaintiff filed application under Order 26, Rule 9 of CPC seeking to appoint a Court Commissioner so as to ascertain whether the photographs produced by the defendants would pertain to the suit schedule property or not. It is pertinent to mention here that the defendants had produced certain photographs along with their objection to the I.A. for temporary injunction and the plaintiff had also produced certain photographs to show the suit schedule property. In that circumstance, the trial Court considered the said application and by its order dated 28.02.2018 allowed I.A.No.3 filed under Order 26, Rule 9 of CPC and directed to suggest the name of the Commissioner along with memo of instructions. The said order is under challenge in the present writ petition.