An application for the appointment of a Court Commissioner may be considered premature if filed before the completion of evidence, but the court may grant liberty to the party to file a fresh application once the evidence of the parties is concluded.

Digitally signed by DHANALAKSHMI MURTHY Location: HIGH COURT OF KARNATAKA

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION PRAYING TO ISSUE A WRIT OF CERTIORARI, THEREBY SET ASIDE THE ORDER DATED 19TH JULY, 2024, PASSED BY THE HON’BLE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU ON I.A NO.4 IN O.S NO.301 OF 2024, AS PER ANNEXURE - B AND ETC.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD

ORAL ORDER

1. In this writ petition, the petitioner-defendant has called in question the order dated 19.07.2024 passed by the XII Addl. City Civil & Sessions Judge, Bengaluru (for short ‘Trial Court’) on I.A.No.IV filed under Order XXVI Rule 9 & 10A read with Section 151 of CPC, in O.S.No.301/2024, whereby the said application filed for appointment of Court Commissioner has been dismissed.

2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court in Original Suit.

3. The plaintiff filed a suit in O.S.No.301/2024 before the Trial Court seeking for relief of bare injunction. On service of suit summons, the defendant appeared and filed written statement. The defendant also filed I.A.No.IV under Order XXVI Rule 9 & 10A read with Section 151 of CPC seeking for appointment of a Court Commissioner to survey the entire land mentioned in the schedule of the application. The Trial Court, by order dated 19.07.2024 dismissed the application. Aggrieved by the said impugned order passed by the Trial Court, the present writ petition is filed.

4. Learned counsel appearing for the petitioner submits that the application filed by the defendant seeking for appointment of a Court Commissioner came to be dismissed on the ground that the application has been filed prematurely, since the parties have not yet led their evidence. He submits that the matter has been set down for evidence of parties, the evidence of plaintiff has been completed and evidence of defendant is yet to commence. Therefore, he submits that the writ petition may be disposed of with liberty to the petitioner-defendant to file a fresh application seeking for appointment of a Court Commissioner after completion of evidence of the parties.

5. In view of the above, the following order is passed:

ORDER

a) The writ petition is disposed of.

b) The petitioner-defendant is at liberty to file a fresh application seeking for appointment of a Court Commissioner, if required, after completion of the evidence of the parties.

c) If such an application is filed, the Trial Court is directed to consider the same and pass appropriate orders in accordance with law.