The court ruled that allowing the appointment of a Court Commissioner during a reserved judgment phase is procedurally improper.

ORAL ORDER

Petitioner - defendant No.1(d) in O.S.No.2092/2009, is before the Court calling in question an order dated 16.02.2023, passed by the IV Additional Civil Judge and JMFC, Mysuru, whereby, an application – I.A.No.11 filed under Order XXVI rule 9 r/w. Section 151 of the CPC, by plaintiff No.1 seeking appointment of Court Commissioner, comes to be allowed. 2. Heard Sri Syed Akbar Pasha, learned counsel for the petitioner, Smt. Geetha M., learned counsel for the respondent No.1. Notice to respondent No.2 and respondent Nos.3 to 8 is held sufficient and dispensed with, respectively.

3. A suit is instituted by respondent Nos.2 and 3 –

plaintiffs in O.S.No.2092/2009 seeking declaration and mandatory injunction against the defendants. The suit progresses in terms of law. At the time when the matter was posted for its judgment, plaintiff No.1 comes up with an application – I.A.No.11 seeking appointment of a Court Commissioner under Order XXVI Rule 9 r/w. Section 151 of the CPC to measure the suit schedule property. The concerned Court allows the application despite the objections filed by the present petitioner as also the fact that the matter was posted for its judgment. The result of which is restoration of the matter for a clarification in terms of the application. This is what has driven the petitioner - defendant No.1(d) to this Court in the subject petition.

4. Learned counsel for the petitioner would reiterate the contents of the objections filed before the concerned Court on the application so filed by the plaintiff. Notwithstanding the objections, the concerned Court has allowed the application and appointed a Court Commissioner to measure the plaintiff’s own suit schedule property. He would submit that when the matter was reserved for judgment, the application comes to be filed and therefore, seek quashment of the order so passed by the concerned Court.

5. Learned counsel for respondent No.1 would vehemently refute the submission in contending that the petitioner is a subsequent purchaser and therefore, it was necessary for an appointment of a Court Commissioner to resolve the dispute. Without the report of the Court Commissioner, the dispute would not get resolved and the suit would languish before the concerned Court. In that light, learned counsel seeks dismissal of the petition.

6. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.

7. The afore-narrated facts are not in dispute. It is an admitted fact that the suit is of the year 2009; 14 years pass by; trial progressed and the matter was reserved for its judgment. When the matter was reserved for its judgment, the application in I.A.No.11 comes to be filed by plaintiff No.1, which is comes to be allowed. The order of the concerned Court reads as follows:

“In the present case, the matter was posted for Judgement, later it was posted for clarification. Hence this decision is not applicable to the facts and circumstances of the present case.

12. This suit for possession of B schedule property.

Plaintiff stated in the plaint that, B schedule property encroached by the defendant and direct to demolish illegal construction of B schedule property. This issue court cannot be ascertain by oral and documentary evidence produced by both side. Hence it is just and necessary to appoint court commissioner for purpose of elucidating the matter in dispute. Hence plaintiff has made out to sufficient grounds to allow the application. Accordingly, this court answered Point No.1 in the Affirmative

13. Point No.2: In view of the above discussion on point No 1, this court proceed to pass the following:

ORD