H.R. Ramaiah and Others vs Puttalaxmamma

Ram Mohan Reddy, J.—Petitioner, aggrieved by the order dated 16.2.2013 allowing defendant''s I.A. No. 2 under Order 26 Rule 9 of C.P.C. in O.S. No. 6/2005 on the file of Senior Civil Judge, Madikeri, has presented this petition.

Petitioner instituted O.S. 6/2005 for declaration of title and permanent injunction restraining the respondent, arraigned as defendant, from obstructing plaintiffs peaceful possession and enjoyment of the suit schedule property measuring 2 Acres 77 cents in Sy. No. 53/1 and; 80 cents in Sy. No. 58/1. That suit was opposed by filing written statement of the defendant who made a counter claim that the plaintiff encroached upon written statement B Schedule property and for delivery of its possession. Parties entered trial, whence, petitioner was examined as a witness, while respondent as D.W. 1. After conclusion of the trial, respondent filed I.A. No. 2 under Order 26 Rule 9 of CPC for appointment of Court commissioner to survey and demarcate the written statement schedule property, to elucidate the matter in dispute and report along with the sketch prepared on survey.

In the affidavit accompanying the application, it was alleged that plaintiff encroached the suit schedule ''B'' property which in-fact is a portion of ''A'' schedule property and therefore, the counter claim. In addition, it is stated in order to elucidate the matters in controversy, it is just, necessary and proper to survey and demarcate the written statement schedule property by appointing a competent person as a Court Commissioner to assist the Court to come to a proper conclusion. That application was opposed by filing statement of objections of the petitioner-plaintiffs, inter alia, stating that P.W. 1 was examined, several documents introduced in evidence and at the stage of further examination of the plaintiffs, application was filed with an intention to harass the plaintiffs, while denying the allegation of encroachment. At paragraph-7 it was specifically pointed out that the application was to collect evidence by surveying the lands and therefore, no Commissioner can be appointed for the said purpose. Reliance was placed upon the opinion of this Court reported in Ramachandra Vs. Sundaram Setty, .

That application was not disposed of at that stage of the proceeding, nevertheless, it transpires that on the closure of the side of the plaintiff, the defendant when examined and cross-examined, there afterwards, the application was taken up for consideration and by the order impugned, allowed.

In the first place, application deserved to be rejected at the very threshold, since filed before the conclusion of the trial. The averments in the affidavit accompanying the application discloses that since the parties had not concluded the trial, there was no material forthcoming over alleged boundary dispute. It is needless to state that if trial was not concluded was not the stage for filing an application to appoint a Commissioner under Order 26 Rule 9 of CPC.

The application, in fact, was considered after the conclusion of the trial and therefore, averments in the affidavit accompanying the application, did not support the case of the defendant. On that score, the application deserved to be rejected.

Order 26 Rule 9 CPC reads thus:

"Commissions to make local investigations- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules." 8. The need to resort to order 26 Rule 9 of CPC ought to be felt by the court, for the purpose of elucidating certain details which in its opinion, can neither be had from the records nor can be produced by the parties by way of oral/documentary evidence. The details so required by the court ought to be sought, since in their absence determination of issues in dispute cannot be effectively adjudicated, hence necessitating the appointment of Commissioner, on its own, or at the instance of either of the parties. This is the law laid down in the case of Annappa Mestha Vs. Mutayya Achari, in Miss Renuka Vs. Sri Tammanna Battal and Others, , a learned single Judge of this Court having considered the reported opinions of the Apex court in the matter of invoking of jurisdiction under Order 26 Rule 9 of CPC held thus:

"7. It is settled position of law that Court Commissioner cannot be appointed to collect evidence in support of a claim. After completion of evidence on both the sides, if it is found that there is any ambiguity in the evidence adduced by the parties, then the Court may appoint a Commissioner for the purpose of clarification of such an ambiguity. In the instant case the evidence is not yet commenced and therefore the question of ambiguity in the evidence will not arise at this stage. The Trial Court without considering the settled position of law committed an error in passing the impugned order appointing a Court Commissioner. On this ground the impugned order is liable to be quashed." 9. In the facts of this case, learned counsel for the petitioners is correct in his submission, that respondent when examined as D.W. 1, in cross-examination admitted the fact that his father having purchased written statement ''B'' Schedule property, was in possession and enjoyment of the same and on his death, his mother and other children along with the defendants are in possession and enjoyment of the said property. If that is so, then the question which the respondent would want a decision upon is over alleged encroachment of the written statement B Schedule property, by the plaintiff, without much adieu, does not call for the appointment of Court Commissioner for the purpose as set out in the application. Yet again, it is useful to notice that in the order impugned, the trial Court records a specific finding at paragraph 8 that "there is no material before the court to prove the alleged encroachment" and therefore, "recourse to defendant to prove alleged encroachment is only by way of survey". It is in this context that the learned counsel for the petitioners is justified in submitting that Order 26 Rule 9 cannot be misused for collecting evidence which the respondent precisely wanted to do even before recording evidence.

Although learned counsel for respondent seeks to sustain the order impugned as being well-merited, fully justified and does not call for interference, in the facts and circumstances noticed supra, the trial Court arrived at a perverse finding to allow the application. In my considered opinion, the order impugned is unsustainable and calls for interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Petition is allowed. The order impugned on I.A. No. II under Order 26 Rule 9 filed by respondent-defendant is quashed and IA rejected.