ORDER :

The petitioner is before this Court under Article 227 of the Constitution of India, assailing the order dated 10.10.2014 passed on I.A.No.VI in O.S.No.423/2014 on the file of Principal Civil Judge and JMFC, Udupi.

2. The petitioner is plaintiff and respondents are defendants in O.S.No.423/2014 filed for judgment and decree of mandatory injunction directing the defendants to restore the plaint ‘A’ Schedule Property to its original position by removing illegal construction put up by encroaching upon the plaint ‘A’ Schedule property providing proper set back as per law and for permanent/perpetual injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of plaint ‘A’ schedule property. The plaintiff filed application under Order XXVI Rule 9 of CPC seeking for appointment of Commissioner for the purpose of local inspection as stated in the work memo, filed along with the application. The plaintiff had sought for appointment of Commissioner to measure plaint ‘A’ schedule property assisted by the Taluka surveyor. The defendants filed objection to the application contending that the plaintiff/petitioner has not made out any ground to appoint Court Commissioner for local investigation and denied encroachment by the defendants. It is also stated that the temporary injunction granted was vacated as the plaintiff had not made out prima facie case for grant of injunction. The trial Court by impugned order dated 10.10.2014 rejected the application holding that the application is premature and appointment of Commissioner would arise only after the parties adduce their evidence in regard to matters in issue. The trial Court while rejecting the application as premature has kept open to the parties to move the application for appointment of Commissioner at a later stage. The said order is impugned in this writ petition.

3. Heard the learned counsel for the petitioner and learned counsel for the respondents. Perused the writ papers.

4. Learned counsel for the petitioner submits that the nature of relief sought for and the nature of the suit would require appointment of Commissioner to measure the suit schedule property and to know the encroachment made by the defendants. He further submits that appointment of Commissioner is very much necessary as the defendants/respondents are proceeding with the construction by encroaching the plaintiff’s property and to note the set back to the construction made by the defendants. If Commissioner is not appointed and report is not obtained, it would not be known about the encroachment made by the defendants, and the defendants would continue to encroach upon the suit ‘A’ schedule property. He further submits that the Court could appoint the Commissioner, even before commencement of trial, when the allegations are such that like encroachment. In support of his contention he relies upon the decision in VAITHINATTAR AND ANOTHER Vs. SAKKUBAI AMMAL reported in AIR 2004 MADRAS 419 and PAYANI ACHUTHAN Vs. CHAMBALLIKUNDU HARIJAN FISHERIES DEVELOPMENT COOPERATIVE SOCIETY AND OTHERS reported in AIR 1996 KERALA 276.

5. Per contra, learned counsel for the respondents submits that the application filed by the petitioner/plaintiff for appointment of Commissioner under Order XXVI Rule 9 of CPC is premature and not maintainable. The counsel for the respondents further submits that no ground is made out for appointment of Commissioner and he points out that the Court has rejected the application as it is premature and kept it open to move the application for appointment of Commissioner at a later stage. Therefore, no interference is called for, for the present. Further he submits that the defendants /respondents have specifically contended that they have not encroached the plaint ‘A’ schedule property and they have made construction in accordance with the plan sanctioned by the municipal authorities.

6. The suit is one for mandatory injunction to restore the plaint ‘A’ Sc