IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF SEPTEMBER, 2018 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT WRIT PETITION No.5640/2015 (GM - [ACT]) Between: 1. Sri [ENTITY] S/o Late [ENTITY], Age: 45 years, Residing at: Dasanakoppalu Village, Jayapura Hobli, Mysuru Taluk, Mysuru District. 2. [ENTITY] W/o Late [ENTITY], Age: 65 years, Residing at: Dasanakoppalu Village, Jayapura Hobli, Mysuru Taluk, Mysuru District. 3. [ENTITY] W/o [ENTITY], Age: 35 years, Residing at : Dasanakoppalu Village, Jayapura Hobli, Mysuru Taluk, Mysuru District. Petitioners (By Sri [ENTITY], Advocate) 2 And 1. [ENTITY], S/o [ENTITY], Aged about 55 years, Residing at : Dasanakoppalu Village, Jayapura Hobli, Mysuru Taluk, Mysuru District - 570 001. 2. [ENTITY], S/o [ENTITY], Residing at : Dasanakoppalu Village, Jayapura Hobli, Mysuru Taluk, Mysuru District. Respondents (By Sri [ENTITY], Advocate for R-1; R2 - served unrepresented) This Writ Petition is filed under [SECTION] and [SECTION] of [ACT] praying to call for the entire records in [CASE NUMBER] pending before the II Civil Judge and JMFC, Mysuru and to quash the order dated 19.12.2014 in [CASE NUMBER] in [CASE NUMBER] vide Ann-A. This Writ Petition coming on for Preliminary Hearing in 'B' group this day, the Court made the following: 3 ORDER
The petitioners are before this Court under [SECTION] of the [ACT] challenging the order dated 19.12.2014 on [CASE NUMBER].[CASE NUMBER] in [CASE NUMBER] on the file of II Civil Judge and JMFC, Mysuru.
2. The petitioners are defendant Nos.4 to 6 and respondent Nos.1 and 2 are plaintiffs in [CASE NUMBER] filed for declaration that the plaintiffs are the absolute owners in lawful, peaceful possession and enjoyment and for permanent injunction in respect of suit schedule property.
3. It is submitted that after closure of evidence of both parties when the matter stood posted for arguments, the plaintiffs filed application under [SECTION] read with [SECTION] of [ACT] for appointment of Commissioner for local investigation of the suit schedule property and to submit report as to whether the suit schedule property consists of two portions or one portion and to measure and identify the portions of suit schedule property.
4. The defendants opposed the application filed for appointment of Commissioner stating that when the matter is posted for arguments, the application for appointment of Commissioner is not maintainable. Further, it is contended that there are sufficient evidence on record and appointment of Commissioner is wholly unnecessary. It is also contended that application is vague and would not indicate the purpose for which the appointment of Commissioner is sought.
5. The trial Court, by order dated 19.12.2014, allowed the application and appointed the Court Commissioner for holding local investigation of the disputed building and to note as to whether it consists two separate and distinct portions separated from one another, or not and also on the condition of photographing each distinct feature that is visible at the spot. The said order of appointing Court Commissioner is impugned in this writ petition.
6. Heard the learned counsel for the petitioners and the learned counsel for the respondents and perused the writ papers.
7. The learned counsel for the petitioners contends that when the suit is at the stage of arguments, the application filed by the plaintiffs for appointment of Commissioner under [SECTION] of [ACT] is not maintainable. Further, he submits that the parties have led their evidence and there is sufficient evidence on record to decide the issue involved in the suit and no purpose would be served by appointing Commissioner for local investigation. Further, he contends that the application filed by the plaintiffs for appointment of Commissioner is vague and the purpose for which the plaintiffs have sought for appointment of Commissioner is not indicated in the application nor in the affidavit filed in support of the application. The learned counsel for the petitioners relies upon two decisions of this Court in the case of [PRECEDENT] and in the case of [PRECEDENT] to contend that when the matter is at the stage of arguments, the application for appointment of Commissioner is not maintainable.
On the other hand, the learned counsel for the respondents submits that the suit is one for declaration and permanent injunction, the nature of the application and the relief sought in the suit would require report of the Commissioner to decide the issue involved in the suit. It is the submission of the learned counsel for the respondents that for proper adjudication of the dispute involved in the suit, it is necessary to have the report of the Commissioner. The learned counsel for the respondents relies upon the decision in the case of N. SWAMYGOWDA vs. RAMEGOWDA AND OTHERS reported in ILR 2010 KAR 897 to contend that the appointment of Court Commissioner falls within the discretion of the trial Court and it is for the trial Court, based on the material available on record, to either appoint Commissioner or not to appoint Commissioner. The learned counsel for the respondents also relies upon the decision in [CASE NUMBER] decided on 16.01.2017 to contend that once the trial Court has exercised its discretion to appoint Court Commissioner, normally this Court would not interfere with such order.
9. The suit is one for declaration and permanent injunction in respect of suit schedule property. It is not in dispute that the parties have led their evidence and the matter is at the stage of arguments on the main suit. The plaintiffs filed application under [SECTION] of [ACT] for appointment of Commissioner for spot verification of the suit schedule property. In the affidavit filed in support of the application for appointment of Commissioner, it is stated that the appointment of Commissioner is necessary to find out whether the suit schedule property consists of two portions or one portion; to measure and identify the portion of suit schedule property. [SECTION] of [ACT], empowers the court in any suit where it deems local investigation is required for the purpose of elucidating any matter in dispute, may appoint Commissioner directing him to make such investigation and to report there on to the Court. It is the discretionary power of the Court, while considering the application filed under [SECTION] of [ACT]. The suit is for declaration of title and it is for the Court to come to the conclusion based on the material available on record and then satisfy itself as to whether the case requires appointment of Commissioner or not. In the present case, the trial Court, based on the material available on record, in its discretion has allowed the application for appointment of Commissioner and appointed Court Commissioner for holding local investigation of the disputed building to note as to whether it consists of two separate distinct portions, separated from one another, for enabling the Court to come to just and proper conclusion. The decision cited by the respondents in the case of N. SWAMYGOWDA vs. RAMEGOWDA AND OTHERS reported in ILR 2010 KAR 897, paragraph No.10 reads as follows:
"When there are conflicting versions regarding the location of the suit schedule property, no amount of oral and documentary evidence may enable the Trial Court to adjudicate the matter. It has therefore, appointed the Court Commissioner for ascertaining whether the suit schedule property is situated in the lands at Sy.Nos.175, 291 or 297. The appointment of the Court Commissioner falls within the discretionary province of the trial Court. In exercise of the power under [SECTION] of the [ACT], it is not desirable to direct the trial Court either to appoint or not to appoint the Court Commissioner. The power under [SECTION] of the [ACT] is exercisable only for ensuring that the subordinate Courts function within the limits of their authorities, as held by the Apex Court in the cases of [PRECEDENT] and of [PRECEDENT]."
The order dated 16.01.2017 in [CASE NUMBER], paragraph No.8 reads as follows:
"Further, when it is the specific case of the petitioner herein that the suit schedule property is not in existence by which it is implied that it does not belong to the respondent-plaintiffs, then that is a matter to be established by the defendant and on the basis of the same, the Trial Court would have to give its finding. Therefore, mere appointment of a Commissioner would not lead to any implication with regard to the final adjudication of the matter. If the Trial Court has exercised its discretion to appoint court commissioner to seek further evidence in the matter, I do not find that any different view could be taken in the case as the Trial Court which is seized of the entire suit has exercised its discretion to do so. Therefore, I do not find any infirmity in the order of the Trial Court. There is no merit in the writ petition. Writ petition is dismissed."
10. Both the above decisions would indicate that the appointment of Commissioner is the discretion, to be exercised by the Court on the material available on record and further, it is observed that under [SECTION] of [ACT], it is not desirable for this Court to interfere with the order passed by the trial Court.
11. The decision relied upon by petitioners in the case of [PRECEDENT] (supra) would have no application to the facts of the present case since in that case, the application was rejected on the ground that if the application was allowed, it would get dilated and evidence will have to be re-opened. In the case on hand, the trial Court based on the material available on record, has allowed the application and felt that the report of the Commissioner would assist the court in arriving at just and proper conclusion. The next decision relied upon by the learned counsel for the petitioners i.e. in the case of [PRECEDENT] (supra) was a case of appointment of Commissioner in a suit for bare injunction. This Court observed that in a suit for bare injunction filed by the plaintiff, the plaintiff has to establish his case by adducing evidence in the matter and he has to show his lawful possession over the suit schedule property as on the date of filing the said suit. This decision would also not help the case of the petitioner. On the facts of the present case since the trial Court has allowed the application and appointed the Commissioner to arrive at just and proper conclusion in respect of the dispute involved in the suit, I am of the view that, this is not a case for interference under [SECTION] of the [ACT].
Accordingly, this writ petition is dismissed as devoid of merit.
JUDGE [ENTITY]/SMJ