- 1 - NC: 2025:KHC-D:1407 WP No. 145699 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 145699 OF 2020 (GM-CPC) BETWEEN: AFI AHMED S/O. LATE H VALI ADULLA, AGE: 61 YEARS, R/O: BESIDE MOHAMMADIYA COMPLEX, OPP S.G. COLLEGE, Y. NAGASHASTRY NAGAR, GANDHI NAGAR, BELLARY-DISTRICT, BALLARI. PIN: 583103. …PETITIONER (BY SRI. D L LADKHAN,ADVOCATE) AND: 1. S.RAMACHANDRA REDDY S/O. LATE S. PARVATHAPPA, AGE: 58 YEARS, HINDU, R/O: S-4, MEERA MANSION, 17TH CROSS, BETWEEN 4TH AND 6TH MAIN, MALLESHWARAM, BANGALORE, PIN: 560024. 2. SMT. ASHIYA BEGUM W/O. AFFI AHMED, AGE: 52 YEARS, MUSLIM, R/O BESIDE MOHAMMADIYA COMPLEX, OPP S.G.COLLEGE, Y. NAGESHA SHASTRY NAGAR, GANDHI NAGAR, BELLARY -DISTRICT, BALLARI- 583103. …RESPONDENTS (BY: SRI. B. CHIDANANDA ., ADVOCATE FOR R1; R2-SERVED) ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High Court of Karnataka, Dharwad Bench Date: 2025.01.29 11:44:11 +0530 - 2 - NC: 2025:KHC-D:1407 WP No. 145699 of 2020 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE ORDER DATED 25.02.2020 PASSED BY THE COURT OF 2ND ADDITIONAL CIVIL JUDGE AND JMFC, BALLARI ON I.A.NO.14 IN O.S.NO.615/2012, AS PER ANNEXURE-J, IN THE INTEREST OF JUSTICE. THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. The petitioner is before this Court seeking for the following reliefs: “Issue a writ of Certiorari quashing the order dated 25.02.2020 passed by the court of 2nd Additional Civil Judge and JMFC, Ballari, on I.A.No.14 in O.S.No.615/2012, as per Annexure-J in the interest of justice.” 2. Respondent No.1 had filed a suit in OS No.615 of 2012 initially seeking for a permanent injunction which subsequently came to be amended for declaration of title and recovery of possession. In the said suit, an application in IA No.14 was filed under Order 26, Rule 9 of the Code of Civil Procedure, seeking for appointment of a Court - 3 - NC: 2025:KHC-D:1407 WP No. 145699 of 2020 Commissioner to make a spot inspection and report on encroachment, if any, made by the defendants. This said application, though was opposed by the petitioner-defendant No.2 therein came to be allowed by the impugned order dated 25.2.2020. It is challenging the same, that the petitioner is before this Court seeking for the aforesaid reliefs. 3. The submission of Sri.D.L. Ladkhan., learned counsel for the Petitioner is that the trial Court ought not to have allowed the application for appointment of a commissioner, by appointing the commissioner, the trial Court has delegated its duties to the Commissioner. It is for the trial Court to have considered the evidence led by either of the parties and come to a conclusion, if at all, there is any encroachment and then pass necessary orders. 4. Sri.B.Chidanand., learned counsel appearing for respondent No.1 would however contend that The trial Court has rightly allowed the application in order to ascertain if there is any encroachment, no amount - 4 - NC: 2025:KHC-D:1407 WP No. 145699 of 2020 of evidence could be properly led in relation thereto. In this regard, he relies upon the decision of a Co- ordinate Bench of this Court in Sri Shadaksharappa v. Kumari Vijayalaxmi reported in ILR 2023 Karnataka 3983 more particularly Para 16, 17, 20 and 21, which are reproduced hereunder for easy reference. 16. The next question is whether the Court Commissioner for local inspection can be appointed in a suit for an injunction. 17. The answer to the question referred to above, lies in the reframing question and the question would be whether the power of the Court to appoint the Commissioner is controlled by the form of the suit. The answer is a big no. The language of the provision is clear. It does not impose any such restrictions based on the form of the suit. The guiding factor is ‘ whether the report is necessary for elucidating matters in dispute It can be any kind of suit. Be it suit for injunction, mandatory injunction, declaration and injunction, possession, partition, specific performance, or any suit for that matter. The form of a suit is never the guiding or deciding factor while considering the application for the appointment of a Commissioner. In the judgment of M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit v. Modi Transport Service Referred, supra, the Apex Court has held that the Court has wide discretion under Order XXVI Rule 9 of the Code to appoint the Commissioner. 20. In the backdrop of the discussions made above, this Court cannot lose sight’of the fact that in a large number of suits before the Trial Court, the applications are filed for the appointment of a Commissioner. In other words, this is one of the frequently invoked provisions of the Code. For this reason, this Court - 5 - NC: 2025:KHC-D:1407 WP No. 145699 of 2020 deems it desirable to summarise the broad guidelines that can be followed while exercising the power under Order XXVI Rules 9 and 10 of the Code of Civil Procedure. a) The power of the Court to appoint the Commissioner for local inspection or any other purpose provided in Order XXVI of the Code is discretionary. However, the said discretion is guided by not only Order XXVI Rules 9 and 10 of the Code but also the provisions of the Indian Evidence Act dealing with relevancy, expert opinion, and the burden of proof. b) The discretion to exercise the power under Order XXVI of the Civil Procedure Code is not governed by the form of the suit. The Court can appoint the Commissioner in any kind of suit, provided a report of the Commissioner under Order XXVI of the Code is necessary for elucidating the matter in dispute. c) The issue framed in the suit, or where the issue is not yet framed, the pleadings which give rise to issue/s and the documents placed on record would be a guide to ascertain the ‘matter in dispute ’ referred in Order XXVI Rule 9 of the Code d) The power to appoint the Commissioner for local inspection or scientific investigation/expert's opinion can be invoked even suo motu by the Court, without there being an application by either of the parties, if the Court deems it appropriate to secure the report of the Commissioner. However, the appropriate reasons must precede the order appointing the Commissioner. And such orders are to be passed only after hearing the parties before it. e) The Commissioner can be appointed either before or after the commencement of the trial. However having due regard to the nature of the controversy, if the report is essential for elucidating the matter in dispute, it is desirable to have the local inspection before the commencement of trial as it is likely to reduce the volume of oral evidence in a given case. f) In addition to the report, having regard to Order XXVI Rule 10 of the Code, the evidence taken by - 6 - NC: 2025:KHC-D:1407 WP No. 145699 of 2020 Commissioner reduced in writing can also be taken on record and examined by the Court while considering the report. g) The report of the Commissioner is not conclusive proof of what is stated therein. The report is only a piece of evidence, that the Court has to examine based on the other materials on record. h) Report of the Commissioner need not be formally marked for being considered as evidence. Once submitted to the Court, the report is part of the Court record and can be looked into by the Court. i) The Court may in its discretion examine the Commissioner on any matter concerning the report. There is no compulsion to examine the Commissioner. However, if the objection is filed to the report, and the party filing objection seeks to examine the Commissioner then the Commissioner should be examined. In either case, once the Commissioner is examined, the Court having due regard to the evidence, may reject or accept the report in its entirety or in part, provided there are materials to justify such a finding on the report. In appropriate cases, the merit of the report can be considered at the final hearing. While considering the report at the final hearing, if the Court finds that the report is erroneous and fresh commission is required, the Court may pass appropriate order in this regard. j) If the Court is dissatisfied with the proceedings of the Commissioner ’as found in Order XXVI Rule 10 (3), it may direct further inquiry depending on the facts. As a matter of caution, it is clarified that examination and order under order XXVI 10 (3) are only to verify if the Commissioner has followed the proper procedure while carrying out his task. k) The person who has filed an objection to the report has the option of cross-examining the Commissioner to substantiate his objections or even without cross- examination, it is open to establish that the report is inadmissible in evidence. - 7 - NC: 2025:KHC-D:1407 WP No. 145699 of 2020 21. Having examined the provisions referred to above and given the fact that Order XXVI of the Civil Procedure Code is often invoked in the Trial Court, this Court is of the view, broadly speaking in the following cases, the appointment of an appropriate Commissioner as provided under Order XXVI of the Code is desirable. (i) The dispute relating to the easement of air, light, pathway, road, watercourse, etc. (ii) The dispute relating to the boundary, encroachment; (iii) The dispute relating to forgery; (iv) The dispute relating to the existence or otherwise of a stream, pond, drainage, watercourse, road, pathway, pollution, or nuisance. 5. The Co-ordinate Bench of this Court has come to a conclusion that whenever there is a dispute relating to boundaries or encroachment, a commissioner could be appointed by the Court. 6. In the present matter, the dispute is as regards the encroachment of the property of the plaintiff by the defendants. The Commissioner would be necessarily inspecting the property, measuring the property, marking out the boundaries and submitting a report in relation thereto. If at all, the petitioner has not encroached upon the land of Respondent No.1, the petitioner has nothing to worry about. - 8 - NC: 2025:KHC-D:1407 WP No. 145699 of 2020 7. In that view of the matter, the order passed by a trial Court being proper and correct and suffering from no infirmity, the above petition stands dismissed. 8. The trial Court having permitted both the plaintiff and defendant to file their respective memo of instructions, the time granted is extended by a period of one week from today, with both the petitioner and the Respondent-herein being permitted to submit their respective memos of instructions. Sd/- (SURAJ GOVINDARAJ) JUDGE SR List No.: 1 Sl No.: 55