The petitioners/defendants in O.S.No.230//2012 on

the file of First Additional Civil Judge and JMFC, Malavalli,

are before this Court, being aggrieved by the Order dated

03.06.2022, where by the application filed by the

respondent/plaintiff under Order XXVI Rule 9 was allowed

and a Commissioner was appointed for local inspection

and the petitioners/defendants have also challenged the

order passed on IA.No.24 dated 06.02.2023 rejecting the

application filed by them under Order 47 Rule 1 of CPC.

Heard learned counsel Sri. Arun Bangera for

petitioners and perused the writ petition papers.

Learned

counsel

for

petitioners/defendants

would submit that, the respondents/plaintiffs filed an

application under Order XXVI Rule 9 of CPC praying to

appoint a Commissioner for local inspection to measure

the property and to identify the encroachment and illegal

construction of defendants. The said application was

opposed by the petitioners/defendants by filing objections

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stating that, appointment of Commissioner would not be

necessary when the suit is posted for arguments. It is

submitted that, the application for appointment of

Commissioner is filed to create some evidence and to

harrass the defendants.

4.

The Trial Court under impugned order allowed

the application and appointed ADLR, Malavalli as Court

Commissioner

to

measure

the

suit

property

and

constructed area and to file a report.

5.

The learned counsel for petitioners would

contend that, the Trial Court committed an error in

allowing the IA filed under Order 26 Rule 9 of CPC that too

when the matter was at the stage of arguments. Further

the learned counsel would submit that, the material on

record would be sufficient to decide the issue involved in

the suit. There was no necessity for appointment of

Commissioner to measure the suit schedule property. The

learned counsel would submit that, appointment of

Commissioner is sought to collect the evidence and to

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drag the proceedings. Thus, he prays for dismissal of the

application by allowing the writ petition.

6.

On hearing the learned counsel for petitioners

and on perusal of the writ petition papers, I am of the

view that, the Trial Court is justified in appointing Court

Commissioner by allowing application filed under Order

XXVI Rule 9 of CPC by respondents/plaintiffs.

7.

The Trial Court while allowing the application

has observed that, it is the case of the plaintiffs that the

respondents have encroached the plaintiffs property and

have

proceeded

to

construct

a

house.

In

that

circumstance, the Court thought it fit to appoint a

Commissioner to measure the suit schedule property and

to find out construction and encroachment.

8.

A co-ordinate Bench of this Court in WP.No.

201274/2022 dated 24.01.2023 has pointed out that,

whenever there is allegation of encroachment, it would be

necessary and expedient to appoint Commissioner to find

out encroachment which would save the Court time

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and it would aid the Court in expeditious disposal of the

suit. Paragraphs 12 and 14 of the said order reads as

follows.

12. Under the provisions applicable for local

inspection what is impermissible is the delegation of

adjudicating power. To cite an example, if both

parties claim to be in possession of the disputed

property, the local inspection by the Commissioner

cannot be ordered to ascertain the possession. The

question of possession is to be decided by the court.

However, if one party alleges encroachment by

another and another party denies such allegation,

the Commissioner can be appointed to ascertain

whether there is encroachment or not. In such a

situation the Commissioner is appointed to find out

the nature of possession. The report based on local

inspection will be a handy tool to decide the case

relating to encroachment. In the case on hand, the

petitioner to prove his assertion of encroachment,

instead of leading oral evidence of witnesses has

applied for local inspection, and the same is not onl