N SWAMYGOWDA Vs. RAMEGOWDA

JUDGEMENT

(1.) THE petitioner - plaintiff has called into question the order, dated 4. 8. 2009 (Annexure-F) passed by the Court of the Principal Civil Judge (Senior Division), Srirangapatna, on I. A. No. XIX in O. S. No. 149/2001.

(2.) IN the suit filed by the petitioner for injunction, the respondent no. 3 filed I. A. No. XIX invoking Order XXVI, Rule 9 of Civil Procedure Code (C. P. C.) seeking the appointment of the Taluk Surveyor as the Court commissioner for ascertaining as to in which Survey Number the suit schedule property is situated. The Trial Court allowed the said I. A.

(3.) THE learned Counsel for the petitioner, Sri Mahanthesh Hosmath submits that the petitioner has produced as many as 74 clinching documents to show that the suit schedule property is formed out of the lands at sy. No. 291. He submits that even the Gazette Notification has not weighed with the Trial Court. He takes exception to the Trial Court entertaining the application for the appointment of the Court Commissioner at a belated stage, when the matter was set down for argument. In support of his submissions, he has relied on the decision of this Court in the case of B. S. Nazir Hassan Khan Vs. Aswathanarayana Rao and Others reported in air 2004 Kant. 92, wherein the rejection of an application for the appointment of the Court Commissioner filed at a belated stage, when the case is posted for arguments, is held to be proper.