The dismissal of an application on the ground of res judicata should be based on a genuine finding that the matter has already been adjudicated, and not merely on the basis of a previous rejection.

JUDGMENT

1. In a suit filed by the present petitioner as plaintiff in O.S.No.150/1994, in the Court of the learned Principal Civil Judge & Judicial Magistrate First Class at Srinivaspur (hereinafter for brevity referred to as "the Trial Court"), for the relief of permanent injunction, declaration of title and mandatory injunction, the present respondent No.1 as defendant No.1 had filed an application under Order XXVI, Rule 9 read with Sec. 151 of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as "the CPC"), seeking appointment of a Court Commissioner for local investigation, with neat sketch and Mahazar.

2. The said interlocutory application filed under Order XXVI, Rule 9 read with Sec. 151 of the CPC, which was numbered as I.A.No.10 came to be dismissed by the Trial Court, under its order dtd. 16/2/2000. Thereafter the suit of the plaintiff also came to be dismissed as devoid of merits by the order of the Trial Court dtd. 12/12/2013. Challenging the same, the plaintiff filed an appeal in R.A.No.103/2015 in the Court of the learned Principal District and Sessions Judge at Kolar (hereinafter for brevity referred to as "the first appellate Court").

3. During the pendency of the said regular appeal, the appellant, who was the plaintiff in the Trial Court himself filed an application i.e. I.A.No.V under Order XXVI, Rule 9 read with Sec. 151 of the CPC, seeking appointment of a Court Commissioner. After contest, the said application, by the order of the first appellate Court dtd. 27/3/2017 came to be dismissed on the ground of res judicata. Aggrieved by the same, the original plaintiff who was the appellant in the regular appeal before the first appellate Court, has filed this writ petition.

4. Learned counsel for the petitioner (plaintiff) in his arguments submitted that, when in fact the first application (I.A.No.10) filed by the defendant No.1 in the original suit though was under Order XXVI, Rule 9 read with Sec. 151 of the CPC, but it had too vague with ambiguous prayer in it, as such, the Trial Court rejected the said application. However, in the changed circumstance, since conducting a local investigation for denoting the measurements and boundaries of the suit schedule property was very much necessitated, the plaintiff (petitioner herein) was constrained to file a similar application in the regular appeal before the first appellate Court. However, the first appellate Court, without appreciating the same has erroneously rejected his application.

5. Per contra, learned counsels for the respondents in their arguments submitting that, the very plaintiff who had earlier opposed the similar application filed by the defendant No.1 in the original suit, cannot now maintain a second such application, have prayed to dismiss the present writ petition.

6. It is not in dispute that during the pendency of the original suit, the defendant No.1 who is the respondent No.1 herein had filed an I.A.No.10 under Order XXVI, Rule 9 read with Sec. 151 of the CPC, seeking appointment of a Court commissioner for local investigation. As could be seen from the certified copy of the said application which is placed before this Court today, the purpose for the appointment of the Court Commissioner was shown to be for similar local investigation pertaining to the suit schedule property. What that local investigation meant and what the applicant (defendant No.1/respondent No.1 herein) is desirous of getting through the Court Commissioner was neither explained in the application nor in the affidavit in clear terms. In the affidavit also, he has stated that the application was for appointment of a Court Commissioner for local investigation with neat sketch and Mahazar. Thus, even in the affidavit also, he has not stated as to what the Court Commissioner was expected to do in the course of his local investigation. This vagueness in his application was the main ground of attack for the plaintiff (petitioner herein) who opposed the said