An application for appointment of a Court Commissioner to conduct local inspection should be made after completion of evidence and not before commencement of evidence.

ORDER

This writ petition is directed against the impugned order dated 25.11.2022 passed on I.A. No. 5 in O.S. No. 361/2021 whereby the said application filed by the respondents/ defendants under Order XXVI Rule 9 r/w Sec. 151 CPC for appointment of a Court Commissioner was allowed by the trial Court.

2. I have heard learned counsel for the petitioners and the learned counsel for the respondents No.1 and 2 and perused the impugned order including the material on record. Notice to respondent No.3 is dispensed with at the request of the petitioner.

3. In addition to reiterating the various contentions urged in the writ petition, learned counsel for the petitioner submits that in the aforesaid suit for declaration and permanent injunction filed by the plaintiffs against the defendants, even before commencement of evidence, the defendants filed the instant application seeking appointment of a Court Commissioner to conduct local inspection. It is submitted that the procedure of filing an application for appointment of Court Commissioner to conduct local inspection would have to be necessarily undertake by the trial Court only after completion of evidence and not before commencement of evidence as done in the instant case.

4. Per contra, learned counsel for the respondents No.1 and 2 submits that in view of the material on record which indicates that there are allegations and counter allegations as regards encroachment made by the plaintiffs in relation to the suit schedule property, the trial Court was fully justified in appointing a Court Commissioner and the impugned order does not warrant interference by this Court in the present writ petition.

5. The material on record discloses that in the aforesaid suit for declaration and permanent injunction and other reliefs in relation to the suit schedule immovable property, there is a serious dispute as regards the location, identity, boundaries and measurement of the suit schedule property and there are several contentious issues and disputed questions of law in this regard arising between the parties. While it is the specific contention of the petitioners/ plaintiffs that the respondents No.1 and 2/ defendants have encroached upon the suit schedule property, the said contention is seriously disputed by the respondents No.1 and 2-defendants.

Under these circumstances, I am of the considered opinion that the trial Court ought to have permitted the parties to adduce oral and documentary evidence in support of their respective claim in the first instance and thereafter consider the application, I.A. No. 5 filed under Order XXVI Rule 9 CPC for appointment of a Court Commissioner to conduct local inspection after completion of evidence.

6. In the peculiar / special facts and circumstances obtaining in the instant case, I am of the view that the application, I.A. No. 5 was premature and ought to have been deferred for consideration after completion of evidence and on this ground alone the impugned order deserves to be set aside and necessary direction are to be issued to the trial Court in this regard.

7. In the result, I pass the following order.

ORDER i) Writ Petition is allowed;

ii) Impugned order dated 25.11.2022 passed on I.A. No. 5 in O.S. No. 361/2021 is set aside;

iii) The trial Court is directed to reconsider and pass appropriate orders on I.A. No. 5 in accordance with law after completion of evidence by both the sides in the suit;

iv) All rival contentions are kept open and no opinion is expressed on the same.

SD JUDGE BVV List No.: 2 Sl No.: 1