QUASHING

THE

IMPUGNED

ORDER

DATED

22.07.2017 ON IA NO.IV PASSED IN O.S. NO.598 OF 2017

ON THE FILE OF I ADDITIONAL CIVIL JUDGE AND JMFC AT

MANGALORE D.K., AND ORDER EXTENDING TEMPORARY

INJUNCTION ORDER UNTIL FURTHER ORDERS AS PER

ANNEXURE-A AND ETC.,

THIS

WRIT

PETITION

COMING

ON

FOR

PRELIMINARY

HEARING

IN

‘B’

GROUP,

THROUGH

PHYSICAL HEARING/VIDEO CONFERENCING HEARING,

THIS DAY, THE COURT MADE THE FOLLOWING:

3

O R D E R

Challenging the order dated 22.07.2017 passed

in IA No.IV in O.S. No.598/2017 by the Court of the I

Additional Civil Judge and JMFC, Mangalore, D.K.,

(hereinafter for brevity referred to as ‘trial Court’)

appointing a Court Commissioner for local inspection

and the order in extending the temporary injunction

until further orders, the defendants in the trial Court

have filed this Writ petition. The present respondents

who are the plaintiffs have filed the suit for permanent

injunction against the present petitioners in O.S.

No.598/2017 in the trial Court.

2.

According to both sides, pleadings have not

yet

completed

in

the

matter.

However,

the

defendants have filed their counter objections to IA

No.II which application was filed under Order XXXIX

4

Rules 1 and 2 of Code of Civil Procedure, 1908

(hereinafter for brevity referred to as ‘CPC’). At that

stage, the plaintiffs have filed IA No.IV under Order

XXVI Rule 9 read with Section 151 of CPC seeking for

appointment of Court Commissioner. The same came

to be allowed by the trial Court by the impugned order

dated 22.07.2017. On the very same day, the trial

Court has also extended the interim order granted by

it earlier, however upon a Memo dated 22.07.2017,

but until further orders. It is challenging those two

orders, the defendant Nos.1 and 2 in the trial Court

have filed this Writ petition.

The learned counsel for the petitioners

contended that appointing a Court Commissioner at

this stage is premature and would result in collection

of evidence by the Commissioner, which is not

warranted both in the eye of law as well in the

5

circumstance of the case. He further submitted that

keeping pending IA No.II filed by the plaintiffs under

Order XXXIX Rules 1 and 2 of CPC, the trial Court

ought not to have extended the interim order until

further orders.

Per

contra,

the

learned

counsel

for

the

respondents submitted that the very dispute between

the parties is with respect to the boundary of the

respective properties and as such, the appointment of

Commissioner would enable the Court in getting more

clarification and rendering justice in the matter. He

further submitted that there is no bar that the interim

order granted earlier, cannot be extended by the

Court. As such, the Writ petition does not warrant

any entertainment by this Court.

4.

A perusal of the pleadings, the copies of

which have been placed before the Court, would go to

show that the parties to the litigation are very close

6

relatives and that they have a litigation with respect

to the demarcation of their properties, which the trial

Court has tentatively considered as a dispute for

boundary.

5.

The plaintiffs’ contention is about the

location of their property, which according to them is

between a road and the defendants’ property. The

defendants are not agreeable to the said contention of

the plaintiffs. It is in that circumstance, the plaintiffs

alleging that the defendants are encroaching a portion

of his property and attempting to form a road had

approached the trial Court and could able to secure an

exparte adinterim injunction in their favour.

6.

After appearance of the defendants, the

plaintiffs have come up with the IA No.IV under Order

XXVI Rule 9 read with Section 151 of CPC for

appointment of Commissioner. The plaintiffs have

7

sought for appointment of an Advocate Commissioner

to note and report the points as below:

a)

to note and report the existence of the

plaint schedule property in between the

road and property of the defendants.

b)

to note and report t