Heard Sri. K.R.Ramesh, learned counsel for the

petitioner and Sri. M.B.Chandrachooda, learned counsel

for the respondents. With the consent of learned counsel

for the parties, the matter is taken up for final disposal.

Sri. K.R.Ramesh, learned counsel for the

petitioner would submit that the petitioner-plaintiff filed

suit in O.S.No.263/2015 with a prayer to declare that the

plaintiff is the owner of constructed ground level water

tank shown in the rough sketch and also for permanent

and mandatory injunction. It is submitted that after

completion of recording of evidence of both parties, the

petitioner-plaintiff filed I.A.No.8 under Order 26 Rule 9 of

the Code of Civil Procedure, 1908 (for short ‘CPC’) with a

prayer to appoint Engineer from Tumkur City Corporation

to make a local inspection and to measure property of

defendant No.1. Learned counsel would submit that it is

the case of the petitioner-plaintiff that the defendant has

encroached the suit schedule property. Learned counsel

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for the petitioner would submit that when there is

allegation of encroachment, appointing Commissioner and

getting Report would facilitate the Court to properly

appreciate the dispute between the parties and to come to

a proper conclusion. Learned counsel further submits that

the trial Court committed an error in rejecting application

filed under Order 26 Rule 9 of CPC for appointment of

Commissioner.

3.

Per

contra,

learned

counsel

Sri.M.B.

Chandrachooda would submit that if the prayer made by

the

petitioner-plaintiff

in

I.A.No.8

is

allowed

and

Commissioner is appointed, it would result in collecting

evidence, which is impermissible. Learned counsel further

submits that there is sufficient material on record to

decide the dispute between the parties. Therefore, he

supports the order passed by the trial Court and prays for

dismissal of the writ petition.

4.

Having heard the learned counsel for the parties

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

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view that the trial Court committed an error in rejecting

I.A.No.8, filed for appointment of Commissioner to inspect

the suit schedule property.

5.

Order 26 Rule 9 of CPC, permits the Court to

appoint the Commissioner for local investigation for the

purpose of elucidating any matter in dispute and to report

there on to the Court. A Co-ordinate Bench of this Court

in

W.P.No.201274/2022

dated

24.01.2023

had

an

opportunity to examine the circumstances under which the

Commissioner be appointed under Order 26 Rule 9 of CPC.

In the above referred decision, Co-ordinate Bench at

Paragraph Nos.12, 13 and 14 has held 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

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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 only permissible but also desirable.

13.

The next question is, at what stage of

the proceeding in a suit, the application can lie? As

could be easily noticed from the provision, the

provision is not 'stage' centric. Thus the provision

can be invoked either before the commencement of

the trial or after. If the application is filed before

the commencement of the trial, the court having

regard to the pleadings and records may allow such

application be