Sri Lawrence Rebello and David Rebello vs Sri Sundara Shetty and Sri Pandu Shetty

A.N. Venugopala Gowda, J.—Plaintiffs being unsuccessful in the trial Court in the matter of appointment of a Commissioner for conducting of local inspection, have filed this writ petition. Heard Sri. Chandranath Ariga, learned Advocate appearing for the petitioners and perused the writ record.

Suit has been instituted to pass a declaratory decree and a consequential decree of permanent injunction, apart from the claim for payment of cost. Defendants have filed written statement dated 22.07.2009. IA. No. 4 was filed, when the trial of the suit had not commenced, to issue a commission by appointing an Advocate to visit the suit property, measure and prepare a plan showing therein plaint ''A'' and ''B'' schedule properties with the assistance of A.D.L.R.-Surveyor, Mangalore. Application having been opposed, learned Trial judge finding that evidence is yet to begin and when the case is posted for plaintiffs evidence, the application has been filed, has passed the impugned order. Though Sri. Chandranath Ariga, submitted that a commission can be issued at this stage of the suit also, looking into the nature of the suit and the dispute between the parties, since evidence can be adduced by the parties on the lines of the pleadings, the view taken by the trial Court that at this stage a commission cannot be appointed, cannot be found fault with. IA 4 has been filed at a premature state of suit. The view taken by the trial Court is in consonance with the ratio of decision in the case of Miss Renuka Vs. Sri Tammanna Battal and Others, wherein it has been held as follows:

It is settled position of law that Court Commissioner cannot be appointed to collect evidence in support of a claim. After completion of evidence on both the sides, if it is found that there is any ambiguity in the evidence adduced by the parties, then the Court may appoint a Commissioner for the purpose of clarification of such an ambiguity. In the instant case the evidence is not yet commenced and therefore the question of ambiguity in the evidence will not arise at this stage.

In the said view of the matter, petition is rejected. However, this order would not come in the way of either of the parties seeking issuance of a commission to conduct local inspection after the trial of the suit is complete and there being a need for issue of a commission to conduct local inspection. If such an application were to be filed, after trial of the suit is complete, the trial Court shall consider the prayer in accordance with law, uninfluenced by the order passed by it on IA. No. 4.