Appointment Of Court Commissioner To Measure Property Would Not Amount To Collection Of Evidence: Karnataka High Court
The Karnataka High Court held that merely appointing a Court Commissioner to measure the alleged encroachment by the Respondent on the property of the Petitioner would not amount to collection of evidence or decreeing the suit in favor of the latter.
The Court allowed a Petition challenging the order of the Trial Court wherein the Application under Order XXVI Rule 9 of the Civil Procedure Code (CPC) for appointment of Court Commissioner to ascertain the alleged encroachment against the Respondent was dismissed. The Court emphasized that such appointment would aid the Trial Court in deciding the controversy between the parties.
“Therefore, this Court is of the considered view that merely appointing of Court Commissioner to measure the alleged encroachment by the respondent-defendant would not amount to decreeing the suit in favour of the petitioner-plaintiff and not amounts to collection of evidence in favour of the party to the suit. However, it would definitely aid the trial Court to decide the controversy between the parties”, the Bench of Justice Vijaykumar A Patil observed.
Advocate Rajashekhara Seeri appeared for the Petitioner while the Respondent remained unrepresented.
The Petitioner had filed a suit seeking a permanent injunction to restrain the Respondent from constructing on the Petitioner’s property without leaving a proper setback with direction against the defendant to demolish the illegal construction. The Respondent opposed the suit by filing a written statement. The Petitioner approached the Court by way of a Writ Petition challenging the order of the Trial Court whereby the application filed under Order XXVI Rule 9 of the Civil Procedure Code (CPC) seeking the appointment of a Court Commissioner was rejected.
The Court noted that the trial court had erred in rejecting the application as the Defendant had encroached upon the property. The Court held that the appointment of a Court commissioner would not amount to decreeing the suit in favor of the Petitioner or to collecting evidence in favor of either party. Rather, the Court noted that it would simply aid the Court in deciding the controversy between the parties.
Accordingly, the Court allowed the Petition and directed the Trial Court to appoint a Court Commissioner.
Cause Title: Manjunath S.C. v Gangamma (2023:KHC:36521)
