THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 8.12.2020 ON AN APPLICATION FILED UNDER ORDER 26 RULE 9 OF CPC MARKED AT ANNEXURE-E FILED IN O.S.NO.46/2014 ON THE FILE OF THE CIVIL JUDGE AND JMFC AT BAGEPALLI AND ALLOW THE APPLICATION FILED UNDER ORDER 26 RULE 9 OF CPC FILED BY THE PETITIONER HEREIN & ETC.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

ORAL ORDER

This petition is filed challenging the order dated 08.12.2020 passed in OS.No.46/2014 by the Civil Judge and JMFC, Bagepalli (for short ‘the trial Court’).

2. Sri.Manoj M. Naik, learned counsel appearing on behalf of Sri.A.Nagarajappa, learned counsel for the petitioner submits that the petitioner has filed a suit seeking the reliefs of declaration, permanent injunction and mandatory injunction against the respondent. In the said suit, the respondent filed a detailed written statement and contested the proceedings. After conclusion of the trial, the petitioner filed an application seeking appointment of a Court Commissioner, which came to be rejected by the trial Court without assigning any reasons. It is submitted that the petitioner/plaintiff has made a specific assertion in the plaint that the respondent/defendant has encroached the suit schedule property to an extent of east to west 11 feet and north to south 1½ feet and has erected a bunk shop and the said factual aspect is required to be proved by the expert's evidence. Hence, the application is required to be allowed. It is further submitted that by allowing such application, no prejudice would be caused to the other side. However, the trial Court has rejected the application only on the ground that the application was filed at the fag end of the proceedings. In support of his contention, he placed reliance on the decision of this Court in the case of N. Swamygowda v. Ramegowda and Others¹ILR 2010 Karnataka 897. Accordingly, he seeks to allow the petition.

3. Per contra, Sri.B.Ramesh, learned counsel appearing for the respondent supports the order of the trial Court and submits that it is an admitted fact that a property to the extent of 11x18 feet had been allotted to the respondent and thereafter, the authorities have acquired the property of the respondent to the extent of 11x13 feet for widening of the road and he was left with a property measuring 11x5 feet, which can be noticed from the sketch produced as Ex.P10 in the present proceedings. It is submitted that the sufficient material has been placed before the trial Court to record its finding with regard to the alleged encroachment. Hence, filing of the application by the plaintiff is an abuse of the process of law and to drag the proceedings without any justifiable reasons. Hence, he seeks to dismiss the petition.

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

5. The petitioner has filed OS.No.46/2014 which is pending on the file of Civil Judge and JMFC, Bagepalli, seeking the relief of declaration, permanent injunction and mandatory injunction. The respondent entered appearance and filed a detailed written statement denying the assertions made in the plaint. The parties to the proceedings have adduced the evidence and on conclusion of the evidence, the petitioner/plaintiff filed an application under Order XXVI Rule 9 r/w Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') seeking appointment of a Court Commissioner for inspection of the suit schedule property and submit a report with regard to the assertion of the petitioner that the respondent had encroached the suit schedule property to an extent of east to west 11 feet and north to south 1½ feet and had erected a bunk shop. The said application came to be rejected by the trial Court, which is assailed in thi