The court emphasized that sufficient justification is necessary for the appointment of a Court Commissioner under CPC, and the burden of proof lies with the petitioner.

ORAL ORDER

This petition is filed seeking following reliefs:

"a) This Hon'ble court may kindly set aside the order dated 22/07/2019 passed by the Hon'ble Principal Civil Judge and JMFC at Mudagere in O.S.No.11/2017 at Annexure- E, the application under order 26 Rule 9 of C.P.C. to appoint the Survey commissioner to identify and demarcate the suit schedule property and defendant property as the commission is necessary in order to give proper report to the court, as prayed in the application. The suit schedule property bearing Sy.No.1/P4 in extent of 2 acre Coffee plantation, situated at Chandrapura Village, Gonibeedu Hobli, Mudagere Taluk and Chikkamagalur Dist."

2. Sri.Narasimha Murthy G.V., learned counsel appearing for the petitioner submits that the petitioner filed a suit against the respondents herein for permanent injunction, restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property. It is submitted that the father of the petitioner has been granted 2 acres of land in Sy.No.1/P4 at Chandrapura Village, Gonibeedu Hobli, Mudagere Taluk and Chikkamagalur District. It is submitted that the specific averment is made in the plaint that the respondents/defendants are trying to interfere with the property of the petitioner, as their property has never been measured, thinking that the property granted to the father of the petitioner is the property that belongs to the defendants. Hence, it is necessary to measure the said extent of the property owned by the respondents and thereafter, the issue can be resolved. Hence, he has filed an application for appointment of the Court Commissioner to measure his suit schedule property and the defendants' property, which has been rejected by the trial Court.

Hence, he seeks to allow the petition by setting aside the impugned order.

3. Per contra, Smt.Usha S. Nair, learned counsel appearing on behalf of Sri.Mahesh A.S., learned counsel for respondent Nos.1(a) to 1(c) supports the impugned order of the trial Court and submits that the petitioner has not averred any reason whatsoever in his affidavit accompanying the application seeking for the appointment of the Court Commissioner. It is submitted that the trial Court has rightly come to conclusion that the petitioner has to prove his case based on the pleading and material on record. Hence, he seeks to dismiss the writ petition.

4. I have heard the arguments of the learned counsel for the petitioner, the learned counsel the respondents and meticulously perused the material available on record.