The captioned writ petition is filed by the

petitioners-respondent

Nos.1

and

in

the

miscellaneous

proceedings

pending

in

Civil

Miscellaneous No.1/2019.

2. The respondent - plaintiff has instituted a suit

in O.S.No.7/2018 seeking relief of declaration and for

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partition and separate possession of his legitimate

1/3^rd share in the suit schedule properties. The

respondent

-

plaintiff

apprehending

the

highhandedness

of

the

present

petitioners

-

respondent Nos.1 and 2 filed an application in

I.A.No.6 (which is wrongly shown as I.A.No.7 in the

order under challenge) under Order 39 Rule 1 & 2 of

CPC., to restrain the present petitioners from making

any material alterations either by building new

structures

or

demolishing

the

existing

building

structures and also restraining the present petitioners

from felling any trees or plants situated in the suit

schedule properties until final disposal of the suit. The

said

application

was

strongly

resisted

by

the

petitioners herein by contending that the petitioners

are intending only to carry out repairs and they have

no intention to demolish the structure. Learned Judge

having examined the prima-facie materials allowed

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the application and restrained the present petitioners

from demolishing the structure and from felling tress.

The said order is not produced by the petitioners.

[3. The respondent - plaintiff by alleging that the

interim injunction granted by the Court below is

disobeyed by the petitioners filed I.A.No.10 under

Order 39 Rule 2A read with Section 26 of CPC., In the

affidavit filed in support of application the respondent

specifically alleged that the present petitioners have

violated the interim injunction order by demolishing

the building and also cut and remove the valuable

trees situated in the suit schedule properties. To the

said application, the present petitioners have filed

objections and at para No.7 of the objection, the

petitioners have taken a contention that the Rice Mill

shown in item No.(c) was in deteriorating condition

and the same collapsed on account of natural

5

calamities.

They

claimed

that

they

have

not

demolished the building as alleged in the petition.

4. The respondent - plaintiff has lead in ocular

evidence to substantiate his claim made in I.A.No.10.

After recording his evidence, the respondent has

moved an application in I.A.No.5 under Order 26 Rule

9 of CPC., requesting the Court to appoint a

Commissioner to visit the spot and to ascertain

regarding the existence of the Rice Mill and also felling

of trees situated in the suit schedule property. The

said application was strongly resisted by the present

petitioners herein.

5. The Court below has allowed the application.

While allowing the application, the learned Judge has

perused the stand taken by the present petitioners in

the written statement and also in the objections

tendered to the applications in I.A.No.10 filed under

6

Order 39 Rule 2A and the learned Judge was of the

opinion that it is absolutely necessary to have a local

inspection to bring out the truth. It is this order,

which is under challenge.

6. The petitioners questioning the order under

challenge would place reliance on the judgment

rendered by this Court in the case of MISS RENUKA

VS. TAMMANNA AND OTHERS reported in AIR

2007 KARNATAKA 133. Placing reliance on the

judgment, he would contend that the Commissioner

cannot be appointed so as to collect the evidence. He

would also contend that the defendants are yet to lead

evidence in support of their contention and therefore,

he

would

contend

that

appointing

a

Court

Commissioner was unwarranted at this stage and after

conclusion

of

the

proceedings

in

the

pending

miscellaneous petition, the question of appointment of

Commissioner could have been examined.

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7. The first limb of argument that the

appointment of Commissioner in the present case on

hand

amounts

to

collection

of

evidence

is

misconceived and the same cannot be acceded to.

This is a case where series al