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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
VIJAYKUMAR A.PATIL
Bhimappa S/o Ningappa Barker – Appellant
Versus
Mahadevappa S/o Ramappa Aralikatti – Respondent
| Table of Content |
|---|
| 1. seeking relief through writ petition; need for court commissioner. (Para 1 , 2) |
| 2. no appearance of respondents; importance of evidence. (Para 3 , 4) |
| 3. trial court's error in dismissing court commissioner's application. (Para 5) |
| 4. conclusion that appointing commissioner aids fair trial. (Para 6) |
ORDER :
1. This petition is filed seeking following reliefs:
“a) Issue a writ or order or direction in the nature of certiorari quash the Annexure-A impugned of order dated 19.11.2021 passed by the Ld. Civil Judge and J.M.F.C. Kundgol on IA.No.XIV in OS.No.52/2014 and consequently allow the IA.No.XIV filed by the petitioners under order 26 rule 9 r/w Section 151 C.P.C. Annexure-D.
b) Issue any other writ or order or direction which this Hon’ble Court deems fit under the circumstances of the case in the interest of justice and equity.”
2. Sri.Mahesh Wodeyar, learned counsel appearing for the petitioners submits that the petitioners filed a suit for declaration that the plaintiffs have acquired right of easement over the suit schedule property by specific grant and also sought relief of mandatory injunction against the defendants to remove illegal construction effected by them
Appointment of a Court Commissioner is permissible under CPC to collect evidence and assist in factual determination, and it should not be seen as merely collecting evidence.
Law relating to appointment of Court Commissioner is fairly well settled and that the Court Commissioner cannot be appointed for the purpose of collection of evidence.
The court clarified that the appointment of a Commissioner for local inspection in encroachment cases is permissible even before trial, reinforcing the report as vital evidence.
The central legal point established in the judgment is that the appointment of a Commissioner for local investigation should only be done for convenience and after considering the evidence produced b....
The judgment established that there is no bar for appointment of Commissioner even in a simple suit for injunction if circumstances warrant such appointment, and the duty of the Court is to find out ....
The court established that the appointment of a Court Commissioner under Order XXVI Rule 9 CPC should follow the presentation of evidence by the parties, not precede it.
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