Suresh vs Vijay kumar

N.K. Patil, J.—This civil revision petition is directed against the order dated 16.11.2000 passed on I.A.III in O.S.No. 146/95 on the file of the Civil Judge (Jr.Dn.), Sedam, by allowing the I.A. filed by the first respondent under Order 26 Rule 9CPC to appoint the Court Commissioner for local investigation in order to ascertain the correct measurement of the disputed lane.

The petitioner has filed objections to the said application.

After hearing the learned counsel appearing for the parties and after considering the material on record, the trial Court overruled the objections filed by the petitioner and allowed the application filed by respondent No. 1 for appointing the Court Commissioner to make spot inspection and submit his report on the ground reality of the suit schedule property in question by its order dated 16.11.2000. Assailing the correctness of the order passed by the trial Court, the petitioner presented this revision petition.

The principal submission of the learned counsel appearing for the petitioner is that the Court below erred in allowing the application tiled by the first respondent to appoint the Commissioner as there is no compelling reason much less justification. The Court below failed to note that a Commissioner has to be appointed to ascertain correct position of the suit property only when there is ambiguity or the evidence on record does not assist the Court in coming to a right conclusion. Further, he pointed out that in the instant case, it is significant to note that the evidence has not yet commenced. There is no material before the Court so as to warrant the appointment of Commissioner to clarify any situation. To say the least, the application is pre-mature. Hence, he prayed that the order passed by the Court below is liable to be set aside.

Per contra learned counsel for the respondents, inter alia, justified the impugned order. He vehemently submitted that the trial Court has rightly considered the request of the first respondent and allowed the application for appointment of Commissioner having regard to the facts and circumstances of the case and to find out the ground reality of the suit schedule property and to substantiate his submission. He placed reliance on the judgment of this Court in the case of Anil Kamalakar Shirodkar v. Dudhappa Santu Patil and another reported in ILR 2001 Kan 5013. This Court held thus:

"In revision High Court held, in a suit for injunction wherein parties allege encroachment of property, where correct extent and boundaries of the property are in dispute. It is just and necessary that a survey has to be conducted and the boundaries of the properties are to be identified. In such a situation, appointment of Commissioner should not be mistaken for collecting evidence."

Further he placed reliance on another decision of this court in the case of Kanala Narasamma v. Nanjappa reported in ILR 1992 Kan 951, wherein this Court held as under:

"The power of the Court in appointing the Commissioner for these purposes should be made before the commencement of the evidence or the settlement of the issues."

He rightly pointed out that in the instant case, the evidence is yet to be commenced. Therefore, having regard to the contention taken by the Respondent, there is a need for having correct ground reality of the suit schedule property. The Court has rightly considered the request and appointed the Commissioner. Therefore, he submitted that the petitioner has not made out any case to interfere with the impugned order passed by the trial Court.

The short question that arises for consideration in the instant case is: Whether the trial Court has passed the impugned order in accordance with law?

The records disclose that the trial Court has considered the rival contentions of the parties and having regard to the nature of the suit and to find out the ground reality of the spot in dispute between the petitioner and the respondent, has rightly considered the request of the respondent and allowed the application for appointment of the Commissioner.

Further, the trial Court has given a finding that the appointment of a Court Commissioner is, to make local investigation and submit his report and that will help the Court to come to the right conclusion of the dispute in question and that if the Court Commissioner is appointed, no prejudice or hardship would cause to the petitioner. Because the petitioner has got every right to the his objections and cross-examine the Court Commissioner during the trial and following the judgment of this Court stated supra, the trial Court has appointed the Court Commissioner.

I have gone through the impugned order carefully and reassessed the matter and also re-evaluated the material available on records and keeping in view the well settled law laid down by this Court as stated supra I do not find any error on facts and law to interfere with the impugned order passed by the trial Court. Having (regard) to the actual legal position as stated above and taking into consideration the totality of the case, the interference by this Court is unwarranted. Accordingly the revision petition is dismissed.

However, the trial Court is directed to dispose of the matter as expeditiously as possible keeping in view the tendency (pendency?) of the matter since several years.