The appointment of an Advocate Commissioner must be timely and not used to collect evidence after the conclusion of arguments.

ORAL ORDER

Aggrieved by the orders passed on I.A.No.13 in O.S.No.968/2009 dated 19.08.2018 by the XIV Addl. City Civil Judge at Bangalore [CCH No.28], the plaintiff is before this Court.

2. The plaintiff had filed the suit seeking permanent injunction restraining the defendants, their agents, servants interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule 'A' property and to issue a mandatory injunction directing the defendants to remove the compound wall put up by them on the encroached portion of the 'A' schedule property which is described at 'B' schedule property and put the plaintiff into possession. The suit is of the year 2009. After the entire evidence is let in and the matter is posted for arguments, at that stage, an application - I.A.No.13 came to be filed seeking appointment of the Commissioner to measure the entire suit schedule property and the defendants property, which came to be dismissed by the Court by the order impugned wherein the trial Court has observed that - present IA is filed by the applicant after completion of the evidence of both the parties and at the stage of argument to measure the entire suit schedule property of the plaintiff and defendants, since the suit is filed seeking mandatory injunction and permanent injunction, it is the duty of the plaintiff to prove the encroachment by the defendant on the basis of oral and documentary evidence, and not with the help of the Commissioner, it amounts to the collection of evidence. Further, the application is filed at the belated stage, when the case was posted for arguments on 11.04.2018 and again for defendants arguments on 24.04.2018, at that time, the plaintiff has come up with the present IA. The Court relying on the judgment of this Court in B.S.Nazir Hussain Khan Vs. Ashwathnarayan Rao and others, Reported in 2004 (2) KAR. LJ191. has come to the conclusion that such an application cannot be entertained at this stage and accordingly dismissed the IA. Aggrieved thereby, the plaintiff is before this Court.

3. Learned counsel appearing for the plaintiff submits that when there is no dispute with regard to the title and in the cross-examination, when the defendants have stated that they have no objection if the Court Commissioner is appointed to survey the land and that is the only issue between the parties. There is no difficulty in appointing the Advocate Commissioner. The finding of the trial Court that the application is at belated stage and it amounts to collection of evidence, is contrary to law. It is submitted that there cannot be any straightjacket formula either to allow an application for the appointment of Commissioner or to dismissing it. In that regard, she had relied on a order passed by the Co-ordinate Bench of this Court in V. Girish vs. J. Darshan & Others, Arising out of W.P. No. 10852/2016.This Court has set aside the order passed by the Court and observed that when there is an allegation of encroachment, any amount of oral and documentary evidence would not assist the Court to arrive at a proper conclusion. If the report of the Commissioner is on record, it would be a great assistance to the Court and accordingly this Court had allowed IA and set aside the impugned order by appointing the commissioner.

4. Learned counsel appearing for the petitioner submits that as this case is also arising out of the similar circumstances. Hence, in this case also the impugned order needs to be set aside and in the interest of justice, the IA needs to be allowed to effectively adjudicate the dispute between the parties.

5. This matter came up before this Court on 21.01.2025 and on that day, there was no representation on behalf of the respondents. This Court heard the learned counsel for the petitioner and posted this matter as part-heard. Today also, there is no representation on behalf of the respondents. Even on the earlier occasions also there was no representation on behalf of the respondent. As this is a Writ Pe