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.

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 at their own costs and keep open the suit property up to sky and for relief of permanent injunction against the defendants. It is submitted that in the said suit, after conclusion of trial, the petitioners filed an application for appointment of a Court Commissioner to inspect and report to the Court, whether the defendants have left open space measuring 5 feet i.e., the suit schedule property towards the eastern side of the property of the plaintiffs or not. However, the trial Court dismissed the said application solely on the ground that the filing of the application amounts to collection of evidence, which is impermissible. It is submitted that the petitioners have led the evidence and placed sufficient material with regard to the illegal construction put up by the defendants over the suit schedule property. It is further submitted that the suit schedule property is open space used by the petitioners as well as the defendants from ages and the same is required to be kept open for the use of both the parties. It is also submitted that the defendants have denied the assertion of the plaintiffs in the written statement as well as the objection filed to the application. Hence, it is very much necessary to ascertain as to whether the defendants have illegally put up the construction over the suit schedule property or not, by appointing the Court Commissioner and his report would aid the trial Court to decide the dispute between the parties in a proper way. Hence, he seeks to allow the petition.

3. No representation for the respondents despite granting sufficient time.

4. I have heard the arguments of the learned counsel for the petitioner and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced.

5. The Material on record indicates that the petitioners filed a suit O.S.No.52/2014 for relief of declaration that the plaintiffs have acquired the right of easement over the suit schedule property by specific grant, relief of mandatory injunction to remove the illegal construction put up by the defendants in the suit schedule property and to keep open the suit property up to sky and further relief of permanent injunction restraining the defendants from claiming or putting up any construction over the suit schedule property. The defendants filed a detailed written statement denying the assertion made in the plaint. The records indicate that after conclusion of the trial, the petitioners filed an application under Order XXVI Rule 9, r/w Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) seeking for appointment of an Advocate as a Court Commissioner to inspect and report as to whether the defendants have left open the space measuring 5 feet i.e., the suit schedule property towards t