SREE SREEPADARAJA MUTT Vs. PYRA RAMAIAH

JUDGEMENT

(1.) THIS revision under Section 115, CPC arises from the order dated 3. 11. 1998 whereby the Trial Court appointed a Commissioner for spot inspection and to report the exact situation of the property because the dispute between the parties is as to the very nature of the suit property. The order itself appoints A. D. L. R. as the Court commissioner and he has been expected to report throwing light upon the facts existing on the spot regarding nature of the property. The Court below opined that in the circumstances of the case the appointment of commissioner is necessary. Feeling aggrieved from that order, the plaintiff has come up in revision.

(2.) I have heard the learned Counsel for the parties.

(3.) A preliminary objection to the revision has been taken by the learned Counsel for the respondents that the order impugned does not amount to a case decided. A reference was made to a decision of this Court in ILR 1981 (1)Kar. 121. Meeting the objection, a reference has been made by the learned Counsel for the revision petitioner to a Division Bench's decision of this Court in the case of Vijaya Bank housing Co-operative Society v. Srinivasa raj and the Division Bench after considering the case law disagreed with the Single Judge's decision in the case of N. Kanna Reddy, bangalore v. B. Suguna and Anr. , holding that order appointing the Commissioner or refusing to appoint the Commissioner amounts to a case decided. In this view of the matter, Single Judge's decision in the above case may be taken to have been overruled. It is held that an order appointing Commissioner or refusing to appoint Commissioner amounts to a case decided. But, for exercising jurisdiction, a case has to be made out within the four corners of clauses (a), (b) or clause (c) of Section 115 i. e. , jurisdictional error has to be pointed out. In my opinion, there is no jurisdictional error. It was contended that commission could not be issued after defendants produced their evidence and commission could not issued for collection of evidence. For the evidence which could be produced in the Court no doubt ordinarily commission is not issued for collection of evidence. But, report of the spot situation has to be produced before the Court if the dispute relates to marking of boundary or nature of the property, the evidence which could be produced is only through the commission which it may give and find out about the situation of the property and facts existing on the spot so as to help the Court to arrive at a conclusion about the nature of the property along with other evidence produced by other parties. Production of Commissioner's report should have been done after evidence, 1 am unable to accpet this contention in the present case. Evidence may be examined. If case is favourable to the plaintiff-defendant may be cross-examined on that basis. Then defendant's evidence has to be adduced along with Commissioner's report. So, in such circumstances, there is no illegalaity in the order. Further, the order impugned is not going to cause any injury of the nature which can be said to be irreparable loss or any injury. The plaintiff is also at liberty to cross-examine the Commissioner who may go on spot inspection. No doubt, inspection has to be done in the presence of the parties. Parties may also file objection to the Commissioner's report. The Commissioner will only inspect as directed by the Court and furnish the factual position on spot. The order impugned does not appear to have a tendency to cause any injury to the parties. Revision, as such, is dismissed. It has been contended that A. D. L. R. should not have been appointed, instead an Advocate should be appointed. I don't want to express any opinion on that point. It is for the Court below to see that proper person is appointed as Court commissioner. If applicant has any objection he may approach the lower Court and seek for change. But, it is not for this Court to interfere. It is expected that the Commissioner, after giving the notice, would submit his report as early as possible within the time prescribed by the Court. Revision dismissed.