ORDER :

Vijaykumar A. Patil, J.

This writ petition is filed challenging the impugned proceedings dated 18.07.2022 recording the memorandum of facts in O.S.No.290/2022 by the I Additional Civil Judge and JMFC, Malavalli (for short, ‘the Trial Court’).

2. Sri.Guru Prasanna S., learned counsel appearing for Smt.Priyanka S.Angadi and Smt.Rachana R., learned counsels for the petitioner submits that the petitioner filed a suit for permanent injunction against the respondents. In the said suit, the learned Presiding Officer visited the suit schedule property and recorded the memorandum of facts which is impermissible before recording the evidence in the matter. It is submitted that though the power to visit the property is available to the learned Presiding Officer but the same cannot be done at the initial stage of the proceedings that too when an application for temporary injunction was pending. It is further submitted that later the Trial Court heard the application for temporary injunction filed by the petitioner-plaintiff and rejected the same. Though there is no reference of the memorandum of facts impugned in the present petition wherein it is recorded that the petitioner is not in possession of the property, it would have definitely weighed the mind of the Court while rejecting the application for temporary injunction. Hence, he seeks to allow the petition.

3. Per contra, Sri.Chiranth S.H., learned counsel appearing for Sri.Yeshu Baba Mishra, learned counsel for the respondents supports the impugned memorandum of facts recorded by the learned Presiding Officer and submits that the writ petition is premature. The learned Presiding Officer has visited the spot, noticed certain facts and recorded the same in the form of memorandum of facts. Unless the same is used in passing an order, there cannot be any writ petition challenging such recording of observation. Hence, he seeks to dismiss the petition.

4. I have heard the arguments of the learned counsel for the petitioner, learned counsel for the respondents and meticulously perused the material available on record.

5. The correctness of recording of facts by the learned Presiding Officer on 18.07.2022 in the suit filed by the petitioner for the relief of permanent injunction is called in question in the present petition. Therefore, it would be useful to refer to the Order XVIII Rule 18 of Code of Civil Procedure, 1908 (for short, the CPC).

Order XVIII Rule 18 of CPC reads as under:

“ORDER XVIII

Hearing of the suit and examination of witnesses

18. Power of Court to inspect.— The Court may at any stage of a suit inspect any property or thing concerning which any question may arise [and where the Court inspects any property or thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit].”

6. The Hon’ble Supreme Court and the High Courts have considered the scope and object of Order XVIII Rule 18 of the CPC in the following decisions:

(1) In the case of UGAMSINGH AND MISHRIMAL Vs. KESRIMAL AND OTHERS, AIR 1971 SC 2540, the Hon’ble Supreme Court, at paragraph 17 has held as under:

“17. One other objection which the learned Advocate for the appellants urged at the outset is that the findings of the trial Judge are vitiated because he did not rely on the evidence on record but decided to which sect the idol in dispute belongs, only on what he found on his inspection of the idol and the Temple which cannot be evidence in the case, without his being subjected to cross-examination. It is further contended that even if what has been stated in the judgment is what the trial Judge had observed in his inspection there is nothing to show that he had drawn up inspection notes and made them part of the record as required under the law. The contention that the trial Judge had given his findings mainly on the observations made during his inspection in the first place is based on insufficient a