The petitioner/plaintiff No.4 in O.S.No.254/2002 on

the file of the II Additional Civil Judge (Jr. Dvn), Bengaluru

Rural District, Bengaluru (for short, ‘Trial Court’) is before

this

Court

questioning

order

dated 15.07.2023

on

I.A.No.1/2022 rejecting the application filed under Order

26 Rule 9 of CPC.

Heard the learned counsel Sri.M.S.Nagaraja for

petitioner/plaintiff

No.4

and

learned

counsel

Ms.S.Aishwarya for Sri.Rajeshwara.P.N., learned counsel

for respondents No.1 to 3. Perused the writ petition

papers.

Learned counsel for the petitioner/plaintiff No.4

would submit that after completion of recording of

evidence, petitioner/plaintiff No.4 filed I.A.No.1/2022

under Order 26 Rule 9 of CPC praying to appoint Court

Commissioner for conducting survey of schedule property

and to prepare sketch by identifying the encroached

portion of land measuring 0.37 guntas in Sy.No.20/2 and

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20/3 of Sonnenahalli Village, Kengeri Hobli, Bengaluru

South Taluk. Learned counsel would submit that as the

defendants have encroached western portion of the suit

schedule

property,

it

has

become

necessary

for

petitioner/plaintiff No.4 to file application for appointment

of Commissioner to find out the encroachment. Learned

counsel would submit that similar application was filed on

earlier occasion and the said application for appointment

of Commissioner was rejected. The said rejection of

application for appointment of Commissioner was the

subject matter of W.P.No.26530/2017. This Court by order

dated 05.07.2017, dismissed the writ petition observing

that there is no specific averment made in the plaint and

no material is produced to prove the encroachment and on

the ground that appointment of Commissioner sought is

not to find out encroachment as alleged. Learned counsel

would submit that subsequently, amendment application

to incorporate the allegation with regard to encroachment

was filed and the said amendment was allowed by order

dated 16.12.2019. The said allowing amendment is not

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challenged by defendants and it has become final.

Subsequently, petitioner/plaintiff No.4 filed I.A.No.1/2022

under Order 26 Rule 9 of CPC praying for appointment of

Commissioner to conduct survey and to find out the

encroachment. The Trial Court committed an error in

dismissing the said application that too, when the

petitioner’s prayer is for appointment of Commissioner to

find out encroachment. Learned counsel would submit that

if the Commissioner report is obtained with regard to

encroachment,

it

would

aid

the

Court

in

proper

adjudication of the dispute between the parties. Learned

counsel would submit that the Trial Court failed to exercise

its jurisdiction under Order 26 Rule 9 of CPC. Further,

learned counsel for the petitioner/plaintiff No.4 places

reliance on the decision of Co-ordinate Bench of this Court

in W.P.No.20127/2022 dated 24.01.2023 and in terms of

the said order, he prays for allowing the writ petition and

to

appoint

the

Court

Commissioner

to

find

out

encroachment.

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Per contra, learned counsel Ms.S.Aishwarya for

Sri.P.N.Rajeswhara, learned counsel for respondent Nos.1

to 4 would support the order passed by the Trial Court and

submit that as the application for appointment of Court

Commissioner was rejected on an earlier occasion,

petitioner/plaintiff No.4 could not have filed one more

application praying for appointment of Court Commissioner

under Order 26 Rule 9 of CPC. Further, learned counsel

would submit that the parties have completed their

evidence and the material on record would be sufficient to

decide the issue involved in the suit and it would not be

necessary to get the Commissioner’s report. Thus, she

prays for dismissal of the writ petition.

Having heard the learned counsel appearing for

the parties and on perusal of the writ petition papers, I am

of the view that Trial Court ought to have allowed

I.A.No.1/2022 filed under Order 26 Rule 9 of CPC and

ought to have appointed Commissioner to conduct survey

of th