The appointment of a Court Commissioner under Order XXVI Rule 9 of the CPC is justified when there is a genuine dispute regarding the identity or location of the suit property and such inspection aids the court in resolving the controversy without causing prejudice.

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN O.S.NO.4542/2020 ON THE FILE OF HONBLE XXXIX ADDITIONAL CITY CIVIL AND SESSION JUDGE AT BENGLAURU CCH.40. QUASH THE IMPUGNED ORDER DTD 01.12.2022, PASSED ON I.A.NO.3, FILED BY THE RESPONDENT UNDER ORDER 26 RULE 9 OF CPC, IN O.S.NO.4542/2020 ON THE FILE HONBLE XXXIX ADDITIONAL CITY CIVIL AND SESSION JUDGE AT BENGALURU-CCH & ETC.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

This petition is filed by the plaintiff assailing the order dated 01.12.2022 passed on I.A.3 filed by the respondent under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 in O.S.No.4542/2020 on the file of XXXIX Addl. City Civil and Sessions Judge, Bengaluru (CCCH-40).

2. Sri.Srinivasa T., learned counsel appearing for the petitioner submits that the Trial Court has committed a grave error in allowing the application filed by the defendant / respondent without assigning any reasons by appointing the ADLR as the Court Commissioner to carry out the commission work in terms of the memo of instructions by both sides. It is submitted that the petitioner is the absolute owner of the suit schedule property i.e. site bearing No.29 carved out of Sy.No.32 measuring 2204 sq. ft., acquired title from her vendor and she is in possession and enjoyment of the property. It is submitted that the defendant who is a stranger to the property, is illegally trying to interfere with the peaceful possession of the property. Hence, the petitioner has filed the present suit seeking prayer for judgment and decree of permanent injunction restraining the defendant and her agents, etc. from interfering with the peaceful possession and enjoyment of the suit schedule property by the petitioner. It is submitted that the petitioner's site is carved out of Sy.No.32 of Saneguravanahalli Village of Yeshwanthpura Hobli and the defendant who is a stranger to the property in question, is interfering with the possession and enjoyment of the property. It is submitted that when the matter was posted for defendant's evidence, the defendant moved an application for appointment of Court Commissioner. The Trial Court, without assigning any reason, in a cryptic manner, allowed the application and appointed the Court Commissioner to find out whether the subject site of the petitioner is in Sy.No.32 or Sy.No.28/2 of Saneguravanahalli Village. He submits that filing of such an application by the defendant is abuse of process of law. It is further submitted that the entire Sy.No.28/2 has been acquired by the BDA. Hence, the defendant intends to claim right over the property of the petitioner illegally. He therefore seeks to allow the petition.

3. Per contra, Sri.Thagaraja S, learned counsel for the respondent - defendant submits that the petitioner has filed a suit against the defendant restraining the defendant from interfering with the peaceful possession of the property shown in the schedule as site No.29 which is carved out of Sy.No.32. However, actually suit property is situated at Sy.No.28/2 of Saneguravanahalli Village. It is submitted that the defendant has taken a specific stand in the written statement that the schedule property shown by the plaintiff is misleading and actually, the site is situated in Sy.No.28/2 of Saneguravanahalli Village and not in Sy.No.32 of the said village. Hence, to ascertain where the site is exactly situated, it is necessary to appoint a Commissioner so that he can inspect and submit a report which would aid the Trial Court to arrive at a just conclusion to decide the suit. He therefore seeks to dismiss the petit