Karnataka High CourtDr K M Avinasha vs The Executive Engineer on 27 February, 2015Author:B.ManoharBench:B Manohar1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 27TH DAY OF FEBRUARY, 2015

                       BEFORE

          THE HON'BLE MR. JUSTICE B MANOHAR

             W.P.No.6711 OF 2015 (GM -CPC)

BETWEEN:

1.     DR K M AVINASHA
       AGED ABOUT 38 YEARS
       S/O K MOUNACHARY
       REGISTRAR, DEPARTMENT OF
       NERO SURGERY, K E M HOSPITAL
       LOWER PAREL, MUMBAI-12

2.     DR K M ARAVINDA
       S/O K MOUNACHARY
       AGED ABOUT 36 YEARS
       NO. 5847, TYNDALL AVENUE
       BRONX, NEW YORK-10471.

BOTH ARE REPRESENTED
BY THEIR GENERRAL POWER OF
ATTORNEY HOLDER
SHRI MOUNACHARY K
AGED ABOUT 70 YEARS
S/O LATE KUBERAPPA
RESIDING AT NO. 1659/48
III MAIN ROAD
T B EXTENSION
DAVANAGERE-577005.                     .. PETITIONERS

(By SRI SHIVARAMU H C, ADV.)
                                   2


AND:

THE EXECUTIVE ENGINEER
MAJOR WORKS, KPTCL
2ND FLOOR, R H BUILDING
P B ROAD, DAVANAGERE.                            .. RESPONDENT

       THIS W.P. IS FILED UNDERARTICLE 226OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER       DTD.9.12.2014      PASSED       BY    THE     LEARNED
PRINCIPAL        SENIOR        CIVIL       JUDGE        AND     CJM,
DAVANAGERE IN OS NO.15/2012 (OLD) AND NEW
NO.78/2012 AT ANENX-E.

       THIS    W.P.    COMING         ON     FOR     PRELIMINARY
HEARING        THIS     DAY,      THE      COURT      MADE      THE
FOLLOWING:-
                              ORDERPetitioners are the plaintiffs in O.S No.78/2012 on the file of

the Principal Senior Civil Judge and CJM, Davanagere.           Being

aggrieved by the order dated 9.12.2014 rejecting I.A.No.5 filed

under Order 26 Rule 9 read withSection 151of CPC seeking for

appointment of Court Commissioner to inspect the suit schedule

property and give report, this writ petition has been filed.2.     Petitioners filed the suit seeking for damages of Rs.20

lakhs towards encroachment of their property contending that the3defendant without acquiring the property illegally constructed a Hi-

tention line tower in the property and passed over H T Line on

schedule property. Hence sought for damages and for other reliefs.

The defendant filed written statement. On the basis of pleadings of

the parties, issues have been framed. The parties went for trial.

Even before conclusion of the trial, plaintiffs filed I.A.No.5

invokingOrder 26 Rule 9 of CPCto appoint a Court

Commissioner to inspect the suit schedule property and to give

report with regard to utilization of land for construction tower of

H T Line in the property belonging to the plaintiffs. Defendant

objected for appointment of Court Commissioner contending that

Court Commissioner cannot be appointed for collection of

evidence even prior to the commencement of trial. The Trial Court

after examining the matter in detail found that before conclusion of

the trial, I.A.No.5 was filed for appointment of Court

Commissioner for spot inspection to know whether the defendant

has encroached the property of the plaintiffs and that amounts to

collection of evidence and accordingly, dismissed the application

filed by the plaintiffs. Being aggrieved by the same, the present writ

petition has been filed.43.     I have carefully considered the arguments adduced by

the learned Advocate appearing for the petitioners and perused the

order impugned and other relevant records.4.     The records clearly disclose that the defendant has

erected the tower for H T Line in the property belonging to the

plaintiffs. The allegation of the plaintiffs is that before establishing

H T Line in the plaintiffs' property, the said land was not acquired.

No compensation has been paid.            Hence, the action of the

defendant is high handed.       In order to ascertain the extent of

encroachment and also to assess the damages, the plaintiffs filed

I.A.No.5 seeking for appointment of the Court Commissioner.

Defendant objected for appointment of Court Commissioner. The

Trial Court after examining the matter in detail found that

appointing the Court Commissioner to know whether the

defendant has encroached upon the plaintiffs' land amounts to

collection of evidence. The plaintiffs have to prove their case on

the basis of oral and documentary evidence.                The Court

Commissioner cannot inspect and give report with regard to

encroachment of property. This Court in a judgment reported in

AIR 2007 Kar. 133 (Miss Renuka -vs- Thammanna & ors.) has laid5down a law that Commissioner cannot be appointed before

conclusion of evidence of the parties. Further Court Commissioner

cannot be appointed for collection of evidence. In the instant case,

during the course of evidence of PW1, I.A.No.5 was filed for

appointment of Court Commissioner. The Trial Court held that at

this stage, Court Commissioner cannot be appointed.               After

conclusion of the trial, if the Court comes to the conclusion that

on the basis of oral and documentary evidence, the Court is not in a

position to adjudicate the matter on issue, it is open to the plaintiffs

to make an application for appointment of the Court

Commissioner.With the above observation, the writ petition is dismissed.Sd/-JUDGE


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