This Writ Petition is filed by the plaintiff in Original Suit No.

267 of 2021 on the file of the I Additional Civil Judge and JMFC,

Mangaluru, dismissing IA.IV.

2. Plaintiff has filed suit for permanent injunction

restraining the defendnats from interfering with the suit schedule

property. The defendant entered appearance and filed written

statement. In the meanwhile, the plaintiff has filed application

under O 39 Rule 1 and 2 Code of Civil Procedure and the trial

Court

granted

ad

interim

ex-parte

temporary

injunction

restraining the defendant from constructing compound wall

encroaching into suit 8C9 schedule propertyu as per order dated

10^th March, 2021. In the meanwhile, the plaintiff has filed

application in IA.3 under Section 151 Code of Civil Procedure to

enforce the order of temporary injunction against the defendant

to remove the temporary structure erected over the 8C9 schedule

property. The plaintiff has also filed IA.4 under Order 26 rule 9

3

of Code of Civil Procedure seeking appointment of the

Commissioner to hold local inspection with the assistance of

competent surveyor. The trial Court, after considering the

material on record, by its order dated 07^th March, 2022

dismissed the application. Feeling aggrieved by the same, the

plaintiff has presented this Writ Petition.

3. Heard M. Sudhakar Pai, learned counsel appearing for

the petitioner, who contended that the finding recorded by the

trial Court that the appliction is filed pre-trial and there is no

necessity of appointing the Commissioner at the relevant stage,

is contrary to the factual aspects of the case. He submaitted

that since the defendant is erecting compound wall in the 8C9

schedule prooperty and in order to stop such construciton,

appointment of the Commissioner is required. Accordingly he

sought for interference of this court.

4. In the light of the submission made by the learned

counsel appearing for the petitioner, it is not in dispute that the

suit is filed, seeking permanent injunction against the defendant.

Evidence of the parties is yet to begin. Carefully considering the

4

affidavit accompanying the application in IA.4 and taking into

consideration that the trial is yet to commence, inter alia the

main relief sought for by the petitioner is permanent injunction, I

am of the view that the trial Court is justified in rejecting IA.4.

In the event, Commissioner is appointed at this stage, same

amounts to collection of evidence, and onus lies on the plaintiff

to prove the case based on the pleadings and evidence and in

that view of the matter, unless the plaintiff establishes his right

over the suit schedule property, appointment of Commissioner,

at this stage, cannot be considered. Writ Petition is devoid of

merits and accordingly dismissed.

Sd/-

JUDGE

lnn