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Judgment
A.N. Venugopala Gowda, J.—The Petitioner has filed suit against the Respondents and others for declaration, possession and injunction. The suit has been contested by fifing written statement. Issues were framed and trial of the suit is complete. After the suit was posted for hearing of arguments, the Petitioner filed I.A. No. 2 under Order 26 Rule 9 CPC to appoint a commissioner to make local inspection and to submit the report. The 1st Respondent/3rd Defendant filed statement of objections and opposed LA No. 2. The trial court has dismissed LA No. 2 by observing that,
the Plaintiff has not taken any steps for appointment of a court commissioner for a period of 22 years.
after closure of the evidence, the Plaintiff has filed the application to appoint the court commissioner, when the suit is at the stage of hearing of arguments.
the application if allowed, there would be further delay in getting the report and disposal of the suit and it is not proper at this stage to appoint the court commissioner.
However, it has been observed that, the court would have considered the request of the Plaintiff if the application was submitted earlier.
Sri S.P. Shankar, learned senior advocate appearing for the Petitioner contended that, neither the provisions in Section 75 nor Order 26 CPC stipulate or indicate or even suggest the stage at which the application is to be filed or granted by the courts. Reference was made to the decision in the case of B. Jagannath Vs. N.C. Narayanappa and Another, to contend that, under Rule 9 of Order 26 Code of Civil Procedure, power is conferred on the court for appointment of a commissioner for local inspection in order to better appreciate the evidence which is already on record. My attention was also invited to the decision in the case of Miss Renuka Vs. Sri Tammanna Battal and Others, to point out that, after completion of the evidence of both the sides, if it is found that there is an ambiguity in the evidence adduced by the parties, then only the court may appoint a commissioner for the purpose of clarification of such an ambiguity. It was contended that, the view taken by the trial court is irrational and opposed to the ratio of law in the said decisions.
Sri Somanagouda Patil, learned Counsel appearing for the 1st Respondent, in reply contended that, the suit was instituted in the year 1987, more than 22 years has elapsed and when the suit is at the stage of hearing of arguments, I.A. No. 2 filed being highly belated, the trial court was justified in passing the impugned order. Learned Counsel would make submissions in support of the findings and conclusion of the trial court in the impugned order.
Sri S.N. Prashanth Chandra, learned Counsel appearing for the 2nd Respondent took me through the record of the writ petition and submitted that, the appointment or otherwise of a commissioner in exercise of the power under Rule 9 of Order 26 read with Section 75(b) CPC being discretionary, in view of the refusal of the trial court to allow LA No. 2, no interference is called for.
In view of the rival contentions, the point for consideration is:
Whether the trial court is justified in dismissing I.A. No. 2?
An order to issue a commission to any person under Order 26 Rule 9 CPC is discretionary. A report of the commissioner under Order 26 Rule 10 CPC is a piece of evidence which can be rebutted by other evidence. The appointment of a commissioner would depend upon the nature of the dispute and the facts and circumstances of each case. The power to appoint a commissioner under Order 26 Rule 9 CPC being wide and discretionary is required to be considered keeping in view the nature of dispute and the facts and circumstances of the case. The application filed, upon consideration, should be disposed off by reasoned order. The stage at which the commissioner should be appointed, there can be no hard and fast rule. The pre-requisite for issue of a commission is for satisfaction of the court that the local investigation is requisite and proper and such satisfaction is to be judicial satisfaction based on reason.
The trial court has not taken into consideration the prima facie facts and circumstances of the case. The observation made by court that, it would have considered the request of the Plaintiff if the application was submitted earlier makes it clear that, the rejection is only on account of delay. The trial court ought to have examined whether a local inspection is required for the purpose of elucidating any matter in dispute. Since I.A. No. 2 has not been considered in the correct perspective, the impugned order is irrational.
In the result, the writ petition stands allowed and the impugned order stands quashed.
The trial court to re-consider I.A. No. 2 in accordance with law within a period of one week from the date a copy of this order is placed on its record and pass order.
Contentions of both parties are kept open for consideration.