Chikkarevaiah vs Revanasiddappa and Others

Ram Mohan Reddy, J.—Respondents in R.A. No. 153/2013 aggrieved by the order dated 1.8.2014 of the Prl. Sr. Civil Judge and CJM, Ramanagara allowing appellants'' I.A. under Order 26 Rule 10(A) CPC appointing an Advocate as Court Commissioner to make local inspection to ascertain whether the appellants property has any other right of way or to ascertain whether the space available between Ramamandira and appellants property can be used as right of way or not and submit a report, have presented this petition under Article 227 of the Constitution.

Even according to the plaintiffs, in the suit for declaration of easementary right of way to the suit schedule property, a sketch was appended and marked as Ex. P1 disclosing the existence of a passage between Ramamandira and the plaintiffs properties by which some of the plaintiffs used the same for ingress and egress i.e. to and fro from their properties. So also, the defendants in the said suit instituted O.S. 144./1993, arraigning as defendants the appellants in RA 153/2013 (plaintiffs in OS 84/2005), though admitted the existence of the road between Ramamandira and plaintiffs property, nevertheless, in O.S. No. 84/2005, defendants (petitioners herein) denied the existence of the road.

In this set of facts, evidence of P.Ws. 1 and 2, admittedly are in the direction of establishing the description of the properties in Ex. P1, that is, existence of a passage. The judgment and decree in O.S. 144/1993 is marked in evidence as Exs. P12 and 13. In that view of the matter, the question of appointing a Court Commissioner to ascertain whether appellants property has any other right of way, tantamounts to collecting evidence and therefore, no discretion could be exercised by the Court below in that regard invoking order 26 Rule 10(A) CPC. Indeed the said rule provides for appointment of a commission for scientific investigation and on that score also, such discretion could not have been exercised.

Yet again, on the very same set of facts, noticed supra, the appointment of Court Commissioner to ascertain whether the space available between Ramamandira and appellants property could be used as right of way or not, too, was unavailable, more appropriately, in the light of the fact that evidence both oral and documentary was tendered by the plaintiffs over the use of that space for ingress and egress.

The lower appellate Court without application of mind over the existence of relevant material on record, appears to have misdirected itself to exercise a discretion under Order 26 Rule 9 CPC to pass the order impugned to allow the application. The reasons assigned by the Court below cannot but be characterized as perverse.

In the result, this petition is allowed. The order impugned quashed and I.A. under Order 26 Rule 10(A) CPC is rejected.