P.S. Chidanandamurthy vs Basavaraj

B. Manohar, J.—Petitioner is the plaintiff in O.S. No. 64/2010 on the file of the Civil Judge and JMFC, Kadur, being aggrieved by the order dated 15-4-2014 allowing I.A. No. 9 filed under Order 26 Rule 9 of CPC has filed this writ petition.

The plaintiff filed a suit seeking for permanent injunction restraining the defendant from interfering with the peaceful possession and also other reliefs. In the plaint, it was contended that the suit schedule property was purchased by the plaintiff as per the registered sale deed dated 14-07-2006. However, the defendant is interfering with his peaceful possession. In view of that, the plaintiff filed the suit. The defendant entered appearance and filed written statement denying the averments made in the plaint with regard to interfering with the peaceful possession and contended that the plaintiff has encroached upon 6 guntas of land and constructed a shed therein. The defendant filed O.S. No. 46/2010 restraining the plaintiff from putting up shed and hence, the plaintiff is not entitled for any relief and sought for dismissal of the suit. On the basis of the pleadings of the parties, the Trial Court framed necessary issues. The parties went for trial. During the trial, the defendant filed I.A. No. 7 under Order 26 Rule 9 of CPC to appoint the Taluk Surveyor as the Court Commissioner to visit the spot namely plaint schedule property to measure the same with reference to the Revenue and Survey records and to submit a report. The plaintiff objected the said application contending that the suit filed by the plaintiff is for bare injunction. In the said suit, the Commissioner cannot be appointed for collecting the evidence. The defendant has to prove his case on the basis of the oral and documentary evidence and sought for dismissal of the said application. The Trial Court after considering the matter in detail, by its order dated 16-2-2013 rejected the said application holding that the Court Commissioner cannot be appointed to collect the evidence, since there is no allegation with regard to encroachment by the defendant. The said order has become final. Thereafter on 11-09-2013, the defendant made one more application in I.A. No. 9 under Order 26 Rule 9 of CPC to appoint the Surveyor of the Revenue Department as Court Commissioner to inspect the plaint schedule property and to verify whether the plaintiff is in possession of the property to an extent of land more than which he has purchased and to submit a report. The plaintiff filed objections to the said application contending that the application I.A. No. 7 filed by the defendant has already been rejected on 16-2-2013 and the defendant cannot file one more application under the same provision and the application filed by the defendant is hit by the provisions of res-judicata and the Commissioner cannot be appointed to collect the evidence and sought for dismissal of the application.

The Trial Court after considering the matter in detail and taking into consideration the earlier suit filed by the defendant in O.S. No. 46/2010 and also contention of the plaintiff with regard to res-judicata held that in the earlier application, the plaintiff has sought for measuring the plaint schedule property, but in the second application the defendant has sought for measuring both the properties and to give report. The prayer sought in both the applications is different. The Commissioner can be appointed to measure the property when there is an allegation with regard to encroachment of the property. Accordingly, by its order impugned in this writ petition allowed the said application. Being aggrieved by the said order, the plaintiff has filed this writ petition.

Sri. B.S. Sachin, learned counsel appearing for the petitioner contended that the order passed by the Trial Court is contrary to law. The plaintiff had purchased 24 1/2 guntas of land in Sy. No. 37/1A1 situated at Pillenahalli village, Sakarayapatna Hobli, Kadur Taluk. However, the defendant tried to encroach upon his property. Hence, he filed a suit. Infact, O.S. No. 46/2010 filed by the defendant was also dismissed by the Trial Court. Apart from that the defendant has made a counter claim. During the course of trial, I.A. No. 7 filed by the defendant for appointment of a Court Commissioner to measure the plaint schedule property and to submit a report was rejected by the Trial Court on 16-02-2013, on the ground that the Commissioner cannot be appointed to collect the evidence and the parties have to prove their case on the basis of the oral and documentary evidence. Within seven months, one more application I.A. No. 9 has been filed invoking the very same provision of law. While rejecting I.A. No. 7, the court has not reserved any liberty to the defendant to file a fresh application for appointment of Court Commissioner. Hence, the defendant cannot maintain one more application for the same cause of action. The Trial Court had misread and misunderstood the case of the defendant and passed the order which is contrary to law.

On the other hand, the learned counsel appearing for the respondent argued in support of the order passed by the Trial Court and contended that the Trial Court within its limits, in order to settle the dispute between the parties and to verify the extent of encroachment, appointed the Court Commissioner to effectively adjudicate the dispute between the parties and it will help the court to come to a correct conclusion. The earlier application was filed for measurement of the plaint schedule property, but in the second application, it is prayed for measurement of both the properties belonging to plaintiff and the defendant. The application filed by the defendant is not hit by provision of Section 11 of CPC and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties, perused the order impugned and other relevant records.

The records clearly disclose that the plaintiff filed a suit for bare injunction. The defendant filed objections making allegations with regard to encroachment of 6 guntas of land and also made counter claim. During the course of trial, I.A. No. 7 was filed for appointment of the Court Commissioner to visit the spot, to measure the plaint schedule property and to submit a report. That application was rejected by the Trial Court on 16-2-2013 holding that the Commissioner cannot be appointed to collect the evidence. Thereafter, after conclusion of the trial, one more application I.A. No. 9 has been filed on 11-09-2013 by the defendant invoking the same provision of law though the Trial Court rejected I.A. No. 7. However, I.A. No. 9 was allowed and the Court Commissioner was appointed. The said order is challenged in this writ petition.

The Hon''ble Supreme Court in various judgments has held that the parties are required to prove their case by adducing independent evidence. The Court Commissioner cannot be appointed to collect the evidence for the parties. Further, it was held that the power of appointment of the Court Commissioner for local investigation cannot be exercised by the Court to assist the parties in dispute, where it cannot give evidence itself. In the instant case, the plaintiff filed a suit for bare injunction. The question as to who is in possession of the property is a matter to be decided by the court on the basis of the oral and documentary evidence to be adduced by the parties. That exercise cannot be relegated to the Court Commissioner to find out as to who is in possession, who has encroached and what extent. In the case on hand, I.A. No. 7 filed by the defendant for appointment of the Court Commissioner has been rightly rejected by the Trial Court on 16-02-2013. The said order has become final. Within seven months thereafter, I.A. No. 9 has been filed for the very same cause of action. Section 11 of CPC contemplates that "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties and litigating under the same title." In the instant case, I.A. No. 7 and I.A. No. 9 have been filed for the same cause of action. The action of the defendant is hit by the provisions of Section 11 of CPC and he cannot maintain one more application without leave of the Court. The parties had to prove their case on the basis of the oral and documentary evidence. Hence, appointment of the Court Commissioner to measure the properties amounts to collection of evidence. That order cannot be sustained in law.

Accordingly, I pass the following:

ORDER

The writ petition is allowed. The order dated 15-09-2014 made on I.A. No. 9 is set aside.

Since the suit is of the year 2010, the Trial Court is directed to dispose of the matter as expeditiously as possible.