The captioned writ petition is filed questioning

the order of the learned Judge passed on I.A.No.4

filed by defendant No.2 under Order 26 Rule 9 read

with Section 151 of Civil Procedure Code.

2. The present petitioner - plaintiff has instituted

a bare suit for injunction in O.S.No.524/2022. The

petitioner

has

alleged

that

the

respondents

-

defendants attempted to encroach over the suit

property. On receipt of summons, the respondents -

defendants have tendered appearance and have filed

written statement, thereby have stoutly denied the

entire averments made in the plaint. The respondents

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- defendants have also set up a counter claim seeking

relief of perpetual injunction against the present

petitioner - plaintiff. The respondents - defendants

contended that the suit schedule property is not at all

in existence and the said contention is specifically

raised in the written statement. The defendants

apprehension is that the plaintiff under the garb of

asserting possessory rights is directly laying a false

claim over the defendants property i.e., site No.307.

It is in this background, the respondents - defendants

were compelled to file present application in I.A.No.4

seeking appointment of Court Commissioner for local

investigation of the spot to ascertain the boundaries to

the alleged property claimed by the plaintiff and

compare the properties held and possessed by

defendant No.2 and the said application at the

instance of respondents - defendants is allowed

thereby appointing a Taluk Surveyor, Bengaluru to

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carry out the commission work by inspecting the Site

No.307 and Site No.319 situated at Ward No.129.

3. Learned counsel appearing for the petitioner -

plaintiff would vehemently argue and contend before

this Court that the order of the Trial Court appointing

a Court Commissioner is not at all sustainable. The

grievance of the petitioner - plaintiff before this Court

is that the application filed by the defendants is

entertained by the Trial Court and the Court is to

frame issues and permitting the parties to lead their

respective evidence in support of their claim. When

the matter was listed for hearing on application filed

under Order 39 Rule 1 & 2 of CPC., and under Order

39 Rule 4 of CPC., the Court, without relegating the

parties to full fledged trial, has exercised its discretion

illegally in appointing a Court Commissioner to visit

spot inspection and therefore, he would contend that

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the order under challenge suffers from material

irregularities and therefore, is not sustainable.

4. Per contra, the learned counsel appearing for

the defendants would support the order under

challenge and contend that having regard to the

peculiar nature and controversy in regard to the very

existence of the suit schedule property, the Trial Court

was justified in ordering for local inspection and

therefore, he would request this Court to dismiss the

writ petition.

5. Heard learned counsel appearing for the

petitioner and learned counsel appearing for the

respondents. Perused the order under challenge.

6. The petitioner has instituted a bare suit for

injunction alleging that respondents - defendants are

trying to interfere with the petitioner's peaceful

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possession and enjoyment over the suit property i.e.,

site bearing No.319. Per contra, defendant No.2

contends that the alleged schedule annexed to the

plaint is not at all in existence and under the garb of

asserting possessory rights over the site No.319, the

petitioner-plaintiff is virtually laying a false claim over

the property owned by her i.e., site No.307. It is a

trite law that in a bare suit for injunction, the parties

cannot seek to insist for local inspection as the same

would amount to collection of evidence. But, in the

present case on hand, the dispute is in regard to very

existence

of

the

suit

schedule

property.

The

defendants are very assertively claiming the plaintiff's

property is not at all in existence. Therefore, the

present case may warrant