SRI H M MANU vs SRI MARIGOWDA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RD
DATED THIS THE 3 DAY OF SEPTEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.15209/2022 (GM-CPC)
BETWEEN:
SRI. H.M. MANU
S/O SRI. MADEGOWDA
AGED ABOUT 38 YEARS
R/AT. HODIKE HOSAHALLI
KASABA HOBLI
CHANNAPATTANA TALUK
RAMANAGARA DISTRICT.
…PETITIONER
(BY SRI. GURU PRASANNA .S
SMT. PRIYANKA S. ANGADI &
SMT. RACHANA R, ADVS.,)
AND:
1. SRI. MARIGOWDA
S/O CHIKKEGOWDA
AGED ABOUT 67 YEARS
R/AT H. BASAVAPURA VILLAGE
HALAGURU HOBLI, MALAVALLI TALUK
MANDYA DISTRICT-571430.
Digitally signed
by RUPA V
Location: HIGH
COURT OF
KARNATAKA
2. SMT. CHIKKATHAYAMMA
W/O SRI. MARIGOWDA
AGED ABOUT 60 YEARS
R/AT H. BASAVAPURA VILLAGE
HALAGURU HOBLI
MALAVALI TALUK
MANDYA DISTRICT-571430.
…RESPONDENTS
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(BY SRI. CHIRANTH S.H. ADV., FOR
SRI. YESHU BABA MISHRA, ADV., FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
IMPUGNED PROCEEDINGS DTD.18.7.2022 RECORDED BY THE I
ADDL. CIVIL JUDGE MALAVALLI ANNEXURE-A IN
O.S.NO.290/2020. QUASH THE NOTES OF INSPECTION
DTD.18.7.2022 RECORDED BY THE I ADDL. CIVIL JUDGE
MALAVALLI ANNEXURE-B IN O.S.NO.290/2020 & ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
01.09.2026, COMING ON FOR PRONOUNCEMENT OF ORDER,
THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV ORDER
This writ petition is filed challenging the impugned
proceedings dated 18.07.2022 recording the memorandum
of facts in O.S.No.290/2022 by the I Additional Civil Judge
and JMFC, Malavalli (for short, ‘the Trial Court’).
2. Sri.Guru Prasanna S., learned counsel
appearing for Smt.Priyanka S.Angadi and Smt.Rachana R.,
learned counsels for the petitioner submits that the
petitioner filed a suit for permanent injunction against the
respondents. In the said suit, the learned Presiding Officer
visited the suit schedule property and recorded the
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memorandum of facts which is impermissible before
recording the evidence in the matter. It is submitted that
though the power to visit the property is available to the
learned Presiding Officer but the same cannot be done at
the initial stage of the proceedings that too when an
application for temporary injunction was pending. It is
further submitted that later the Trial Court heard the
application for temporary injunction filed by the petitioner-
plaintiff and rejected the same. Though there is no
reference of the memorandum of facts impugned in the
present petition wherein it is recorded that the petitioner is
not in possession of the property, it would have definitely
weighed the mind of the Court while rejecting the
application for temporary injunction. Hence, he seeks to
allow the petition.
3. Per contra , Sri.Chiranth S.H., learned counsel
appearing for Sri.Yeshu Baba Mishra, learned counsel for
the respondents supports the impugned memorandum of
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facts recorded by the learned Presiding Officer and
submits that the writ petition is premature. The learned
Presiding Officer has visited the spot, noticed certain facts
and recorded the same in the form of memorandum of
facts. Unless the same is used in passing an order, there
cannot be any writ petition challenging such recording of
observation. Hence, he seeks to dismiss the petition.
4. I have heard the arguments of the learned
counsel for the petitioner, learned counsel for the
respondents and meticulously perused the material
available on record.
5. The correctness of recording of facts by the
learned Presiding Officer on 18.07.2022 in the suit filed by
the petitioner for the relief of permanent injunction is
called in question in the present petition. Therefore, it
would be useful to refer to the Order XVIII Rule 18 of Code
of Civil Procedure, 1908 (for short, the CPC).
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Order XVIII Rule 18 of CPC reads as under:
“ORDER XVIII
Hearing of the suit and examination of
witnesses
18. Power of Court to inspect .— The Court
may at any stage of a suit inspect any property
or thing concerning which any question may
arise [and where the Court inspects any property
or thing it shall, as soon as may be practicable,
make a memorandum of any relevant facts
observed at such inspection and such
memorandum shall form a part of the record of
the suit].”
6. The Hon’ble Supreme Court and the High Courts
have considered the scope and object of Order XVIII Rule
18 of the CPC in the following decisions:
(1) In the case of UGAMSINGH AND MISHRIMAL
1
Vs. KESRIMAL AND OTHERS , the Hon’ble Supreme
Court, at paragraph 17 has held as under:
“17. One other objection which the learned
Advocate for the appellants urged at the outset is
1
AIR 1971 SC 2540
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that the findings of the trial Judge are vitiated
because he did not rely on the evidence on record
but decided to which sect the idol in dispute
belongs, only on what he found on his inspection of
the idol and the Temple which cannot be evidence
in the case, without his being subjected to cross-
examination. It is further contended that even if
what has been stated in the judgment is what the
trial Judge had observed in his inspection there is
nothing to show that he had drawn up inspection
notes and made them part of the record as
required under the law. The contention that the
trial Judge had given his findings mainly on the
observations made during his inspection in the first
place is based on insufficient appreciation of what
was really observed when dealing with the
question as to which sect the idol in dispute
belongs. It was observed in the judgment that
most of the witnesses produced were non-Jains
and therefore, their evidence does not carry much
weight to establish to which sect the idol belongs.
After stating that the remaining witnesses of the
parties have given statements in favour of their
party the trial Judge said that these statements
also cannot be much relied upon. The decision of
this case is based mostly on the site inspection and
the evidence on record. Even while giving the
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findings the trial Judge remarked that the evidence
led by the plaintiffs appears to be correct. These
observations themselves show that the evidence
on record was an element in the formulation of the
trial court's judgment buttressed by the
observations of the learned Judge during the site
inspection. . There is therefore, no validity in the
contention that the finding of the trial Judge was
based entirely on the result of his inspection. It is
also evident from a narrative given in the
judgment of what was noticed during the
inspection that the Judge had inspected the site on
two occasions once on 24-3-1956 and again a year
and two months thereafter on 23-5-1957. The
details given by him could not have been given if
he had not made some inspection notes. It would
also appear that at the time of the inspection
counsel for the plaintiffs and defendants were
present because when giving a description of the
idol of Neminathji in the Swetambari Jain Temple
when it was noticed that some portion of the idol
under the waist and naval is raised and is like a
line, the Counsel for the plaintiffs pointed out to
him that mark denoted the wearing of a loin cloth
while the Counsel for the defendants said it was
the mark of an artist. Again in respect of the
observation that on the back-side and at the lower
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portion of the naval some portion is raised, the
Counsel for the plaintiffs had pointed out to be loin
cloth, while the Counsel for the defendants said
that it has been engraved by an artist without any
sense. We are satisfied that the description given
by the learned Judge of the idols in the Adeshwarji
Temple and the Temple of the Swetambaries were
observations made during an inspection at which
both the plaintiffs' and defendants' Advocates were
present and that there must have been notes also
in respect of the inspection made on both the
occasions. The appellants had at no time made a
grievance either to the District Judge or to the
High Court or even before this Court except during
the stage of arguments that there' were no
inspection notes nor that the inspection was made
by the Judge behind the back of the parties. If
these objections had been raised earlier the
respondents would have an opportunity of showing
that there were inspection notes. The judgment in
our view is not based solely on the result of
personal inspection made by the trial Judge, which
inspection was for the purposes of understanding
the evidence in the case and has been so used by
the trial Judge. We must therefore, reject the
contention of the learned Advocate for the
appellants that the finding in respect of the idol is
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vitiated. In this view it is not necessary to deal
with any of the decisions referred to before us.”
(2) In the case of B.T.KRISHNAPPA Vs.
2
PRINCIPAL MUNSIFF, KOLAR AND OTHERS , this
Court, at paragraph 3, has held as under:
“3. I have not been able to comprehend how the
provisions of Order 18, Rule 18, are opposed to
Article 14 of the Constitution. Inspection is made
by the Court in the presence of the parties and the
relevant factss observed in the presence of the
parties during the course of inspection will be
recorded. That being so, there is no reason
whatsoever to think that the Court will be
exercising an absolute power. It is nothing but
recording the factss as found during the course of
inspection. This provision is intended to advance
the cause of justice and to avoid unnecessary
evidence being adduced in the case. Further, the
record made of the factss observed during the
course of observation enables the Court to give its
verdict in conformity with the real nature of things.
Thus the inspection by the Court in cases which
are required to be decided with reference to
certain things alleged to exist will greatly help the
2
AIR 1980 KAR 106
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Court to arrive at a correct decision. If the Court
acts arbitrarily during the course of inspection, it is
always open for correction either in the appeal
preferred against the decree passed in the suit or
in revision in deserving cases.”
(3) In the case of SHREE SHREE VISHWOTHAMA
3
THEERTHA SWAMIGAL Vs. SRI.H.BALARAJ , this
Court, at paragraphs 8 and 9 has held as under:
“8. Thus, it is clear that the judgment of the
Court should not be based solely on the
observation made by the Court on local inspection.
The inspection by the Court can only be for the
purpose of understanding the evidence given by
the witnesses. In other words, the observation of
the Judge at the time of inspection can be used
only for the purpose of better following and
understanding the evidence adduced in the case or
to test its accuracy. Therefore, there is no merit in
the contention of the petitioner that the local
inspection is made for collection of evidence in
favour of the respondent.
9. As noticed above, the suit was for bare
injunction on the ground that the
3
ILR 2007 KAR 3856
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petitioner/plaintiff is in possession of the entire 8
acres 24 guntas of land. The specific contention of
the respondent/defendant is that he has been in
possession of 2 acres of land out of 8 acres 24
guntas of the suit schedule property. It is his
further case that the said 2 acres of land consists
of his house, well, standing trees, etc., and that he
has fenced the said 2 aces of land. Therefore, he
made an application under Order 18 Rule 18 of the
Code of Civil Procedure for inspection of the suit
schedule property by the Court. The lower
appellate Court on a proper consideration of the
facts and circumstances of the case, has allowed
the application. It is also clear from the order in
MSA No. 109/2003 that this Court has directed the
lower appellate Court to consider the case on
merits in accordance with law. Therefore, it cannot
be said that the impugned order is contrary to the
decision of this Court.”
(4) In the case of SHRIKANT Vs. SUBHAS,
4
SINCE DECEASED BY HIS LRs. , this Court, at
paragraphs 14 and 15 has held as under:
4
ILR 2016 KAR 297
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“14. By a plain reading of Order XVIII Rule 18
of the CPC, makes it clear that ‘ the Court may ’ at
any stage of the suit inspect any property or thing
concerning which any question may arise and
record the relevant facts observed on such
inspection and such memorandum shall be part of
the record of the suit. The said provision goes to
show that the power has been vested in the Court
to make inspection, if it deems fit. The said power
can be exercised by the Court suo motu or even at
the request made by the parties to Us. The
language does not suggest that parties can claim
spot inspection by the Court as a matter of right.
The Court is not bound under Order XVIII Rule 18
C.P.C. to make a local inspection even if both the
parties request for the same, if it considers that
such an inspection is not necessary. On the other
hand, an inspection can be made by the Court
even if neither of the parties request, if it thinks
necessary to do so in the interest of justice. The
provision has not been enacted in order to test the
veracity or the correctness of the evidence
adduced in the case or believing some witnesses
as against others, when the two sets speak about
state of facts in a contradictory fashion.
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15. The use of words “at any stage of a suit” in
Order XVIII Rule 18 C.P.C. further goes to show
that the local inspection can be made at any stage,
namely, before the evidence has begun to be
recorded or in the course of recording of the
evidence or after the evidence is concluded and
before the argument are heard and judgment is
delivered. It is obvious that there must be some
purpose for the Courts making such inspections,
but by no stretch of imagination, the provisions
can be said to have been enacted by the
legislature for appreciating or believing the
statement of a witness as against others.”
(5) In the case of SANNAGOUNDARA SIDDAPPA
5
Vs. MAHADEVAPPA AND ANOTHER , this Court, at
paragraphs 4 and 5 has held as under:
“ 4. But the learned advocate for the defendant,
who is the appellant before this court, urges that
the decision of the trial Court was vitiated by the
facts that it was based mainly on the learned
Munsiff's own observations during the local
inspection and not on the evidence in the case and
that further that the learned Munsiff made no
5
AIR 1964 MYS 214
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notes of inspection at all, which circumstance
rendered the judgment itself illegal. A number of
decisions have been cited by the learned Advocate
for the appellant in support of the first part of the
contention. It is not necessary to refer to all of
them, since all the important decisions have been
referred to in Krishnaswamy Rao v. Dundappa, 39
Mys LJ 402 : (AIR 1962 Mys 17), where the well
established position is stated, namely that the
views of the presiding officer at the time of
inspection of the property in dispute can be used
only for the purpose of better following and
understanding the evidence adduced in the case or
to its accuracy and the observations of the Judge
cannot be substituted as evidence in the case or to
contradict the evidence placed before the court
and make it the foundation of the judgment. In
this connection I should also refer to what has
been stated on this point in the judgment in S.A.
No. 292 of 1960 (Mys).
5. If the learned Munsiff's decision had been
based solely or mainly on his observation during
the local inspection, it might well be that the
judgment could not be sustained, but the learned
Munsiff in paragraph 20 of his judgment states:
“The truth or otherwise of the evidence of
the witnesses on both the sides, can be
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determined by the observation made by me
at the time of inspection of the disputed
spots, in the presence of both the parties and
their counsel.””
(Emphasis supplied)
6
(6) In the case of BINNY LTD. Vs. H.K.MADIAH ,
this Court, at paragraphs 20 to 22 and 31 has held as
under:
“ 20. Power of holding spot or local inspection
has been conferred upon both the Civil and
Criminal Courts. Order XVIII Rule 18 of the Code of
Civil Procedure provides for the power of the Civil
Courts to inspect. It stipulates that the Court may
at any stage of a suit inspect any property or thing
concerning which any question may arise: and
where the Court inspects any property or thing, it
shall as soon as may be practicable make
memorandum of any relevant factss observed and
such memorandum shall form part of the record of
the suit. Section 310 of the Code of Criminal
Procedure. 1973, empowers the Criminal Courts to
hold local inspection. It provides that any Judge or
Magistrate may at any stage of an enquiry, trial or
other proceedings, after due notice to the parties
visit and inspect any place in which an offence is
6
MANU/KA/0284/1986
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alleged to have been committed or any other place
which it is in his opinion necessary to view for the
purpose of properly appreciating the evidence
given at such enquiry or trial and shall without
unnecessary delay, record a Memorandum of any
relevant factss observed at such inspection and
such Memorandum shall form part of the records
of the case.
21. In Hariprasad Sahu v. Ropna Kharia
MANU/BH/0122/1938 dealing with the scope of
Order XVIII Rule 18 of C.P.C. the Patna High Court
observed :
"Order XVIII Rule 18 lays down clearly that
the Court may, at any stage of the suit,
inspect any property or thing concerning
which any question may arise. But a series of
decisions have laid down that the
observations by a judge in the course of his
local investigation cannot be substituted for
the evidence of witnesses examined on the
subject. It is obvious that in the case of a
judge’s observations, the parties never get a
chance of cross-examining him on the
various points raised or setting right his
views if they are found to be erroneous."
In Achutharamayya v. Soorappayya
MANU/TN/0325/1938 : AIR 1939 Mad 61 the
Madras High Court dealing with the local inspection
by the Court under Order XVIII Rule 18 of the
Cods of Civil Procedure, observed :
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"When the judge welcomes the presence of
crowds of anonymous villagers and indulges
in informal inquiries amongst the people in
those crowds for the purpose of obtaining
guidance in deciding the rights of the parties
and treats the result of those inquiries as
evidence in the case, there is an end of all
judicial procedure. A judgment must be
based on evidence which is admissible in law.
There is no objection to adjudge viewing the
place in dispute in order to enable him to
visualize the locality and to appreciate the
evidence before him. But there is absolutely
no warrant for the procedure whereby the
judge converts himself into an unofficial
investigator and enquires of all and sundry
regarding their views of the rights of the
parties with the object of founding a
judgment on what he has heard."
This Court in Appayya Naika v. State of Mysore
AIR 1964 Mys 177 had to deal with the scope and
ambit of local inspection held by a criminal court in
a proceedings under Section 145 of the Code of
Criminal Procedure in exercise of its power under
Section 539B of the code of Criminal Procedure,
1898 (same as Section 310 of the Code of Criminal
Procedure, 1973) wherein it is laid down:
"Where in proceedings under Section 145,
the Magistrate, in deciding the question of
actual possession of the property in dispute
held a local inspection at the suggestion of
the parties, although the circumstances
disclosed did not justify it, relied upon the
extra-judicial information that he collected
during the local inspection, largely allowed
the impression created during the local
inspection to influence his conclusion, freely
made use of the revenue records which were
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not part of the records of the proceedings
without affording opportunity to the party
adversely affected by The conclusion to rebut
that evidence, based his conclusion solely on
the title deeds and did not consider at all the
statements made by the witnesses in their
affidavits filed on behalf of the parties;
Held : that the order deciding the question
of aactual possession of the deputed property
was vitiated and could not be supported and
was liable to be set aside in revision."
(7) (as paraphrased in the Head Note)
22. All these decisions dealing with the scope of
local inspection either by the Civil Courts or by the
Criminal Courts are of the unanimous view that the
power of local inspection cannot be extended to
use the observations by a Judge in the course of
his local inspection as a substitute for the evidence
of the witnesses examined on the subject as, in
the case of a Judge's observation, the parties
never get a chance of either cross-examining on
the various points raised or setting right his views
if they are found to be erroneous, that there is no
objection to a Judge viewing the place in dispute in
order to enable him to visualise the locality and to
appreciate the evidence before him and there is
absolutely no warrant for the procedure whereby
the Judge converts himself into an unofficial
investigator and enquires all and sundry regarding
their views of the rights of the parties with the
object of founding a judgment on what he has
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heard and to rely upon the extra-judicial
information that he collected during the local
inspection and allow the impression created during
local inspection to influence his conclusion. In
other words, the scope of the local inspection is
primarily limited to make use of the observations
made by the Judge on inspecting the spot for the
purpose of enabling him to better appreciate the
evidence adduced by the parties and proper
understanding of the case. Logically it follows that
conducting of the enquiry or the trial, and
examination of the witnesses should precede the
holding of the local inspection and not vice-versa.
Further in the case of local inspection, the Judge is
not empowered to question the people gathered at
the time of the local inspection and collect
information from them as it is usual that a large
body of men would collect when a Judge or other
authority go for local inspection and incorporate
the summary of their say in his local inspection
report and obtain their signature to it and make
use of the same for moulding his decision one way
or the other. This is essentially so when the power
given to the Judge or the authority is one of local
inspection and not local investigation or local
enquiry.
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In my view, these principles equally apply
respecting the power of holding local inspection
conferred on the Tribunals under the Act.
31. As noticed earlier, the scope of the local
inspection is primarily limited to make use of the
observations made by the Judge/Tribunal on
inspecting the spot for the purpose of enabling
him/it to better appreciate the evidence adduced
by the parties and proper understanding of the
case. Logically it follows that conducting of the
enquiry or trial and examination of the witnesses
should precede the holding of the local inspection
and not vice-versa. That is why local inspection is
made part of the enquiry and not independent of
the enquiry. Since the power of local inspection
given to the Tribunal under the Act is to enable the
Tribunal to better understand and appreciate the
evidence on record, the proper stage at which local
inspection to be conducted is only after the parties
placed their evidence on record. Holding of local
inspection before the parties placed their evidence
on record would amount to putting the cart before
the horse and would serve no purpose. On the
other hand, it will have the effect of creating an
impression in the mind of the Tribunal and it would
result in pre-judging the issue before
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understanding the nature and scope of the
evidence to be adduced by the parties. Thus it
looks to me as noticed earlier that the local
inspection shall have to be conducted only after
recording the evidence and not before, so as to do
full justice to he parties. The observation of this
Court made in Laxmi Shedthi's case ILR 1980 (Kar)
195 (Supra) --
"It is no doubt true that if a state of things is
shown to exist, an inference of its continuity within
a reasonable proximate time both forwards and
backwards, may sometimes be drawn" -- will not
help to contend that the local inspection may be
held event before recording the evidence.
(Emphasis Supplied)
(8) In the case of S.J.RAMAN PHOTO STUDIO
7
AND OTHERS Vs. A.K.M.NOORE AND OTHERS , at
paragraphs 4 and 6, it is held as under:
“ 4. XXX
It is significant to notice that Rule 18 is placed
under Order 18 bearing the caption "Hearing of the
suit and Examination of Witnesses." Above all,
rule. 18 is placed at the end of the said Order.
Preceding the said rule, the other rules prescribe
7
MANU/TN/0349/1986
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as to who is to open the case and as to how the
witnesses are to be examined. The facts that it is
placed at the end of the Order will amply indicate
that if, after hearing the evidence the court feels
that unless it has local inspection, it will not be
possible for it to appreciate the evidence in its true
sense, only then shall the court exercise the power
under Rule 18 and inspect the suit property. In
other words, the power has to be used sparingly
but not readily as has been done by the appellate
authority in this case. I have already referred to
the facts that the appellate authority, while
inspecting the premises, had the assistance of an
Assistant Engineer from the P.W.D. who was also
examined as a witness.
6. In this case, I have already extracted the
reliefs claimed in the petitions. This will
indisputably indicate that by inspection the
Appellate Authority is expected to assess the age
of the building, conditions and nature of
construction of the foundation, walls and the
ceiling and also such other features as the
Appellate Authority may observe with regard to the
present conditions of the building and also to
ascertain whether the present structure could take
the load of further constructions. Thus what the
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Appellate Authority was asked to do by inspection
is to have its own idea about the age of the
building, etc. This is what is prohibited in law. If
the court should exercise its power of inspection
under Order 18, Rule 18 on matters of evidence
and if on such impression it had at the time of
inspection, the court should decide, the party
against whom the decision would be rendered
would be left helpless because he has no right of
cross-examining the learned Judge in the instant
case, the Appellate Authority. If this caution is
borne in mind, then the limitation that is imposed
under Order 18, Rule 18 can easily be perceived.
As already pointed out by me, the right to inspect
has to be exercised cautiously, only when the court
feels that without inspection it will not be possible
for the court to assess the evidence and to dispose
of the lis, resort can be had to their power.”
(Emphasis Supplied)
(9) In the case of PENAKKOT AYISHA Vs.
8
KODACHERY THAZHAM POTTAYIL KUNHATHUTTY , at
paragraph 5, it is held as under:
“ 5. The Privy Council in (1907) ILR 31 Bom 381
(PC) reversed the decision of the Bombay High
8
MANU/KE/0043/1973
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Court in appeal solely on the basis of the local
inspection made by the Judges. All the High Courts
in this country have followed this principle. The
Supreme Court recently had occasion to refer to
this point in Ugam Singh and Mishrimal v.
Kesrimal, (1970) 3 SCC 831 = (AIR 1971 SC 2540)
and their Lordships proceeded to decide the case
before them accepting this principle as correct. At
page 838 their Lordships observed thus:
"The judgment in our view is not based
solely on the result of personal inspection
made by the Trial Judge, which inspection
was for the purposes of understanding the
evidence in the case and has been so used by
the Trial Judge. We must therefore, reject the
contention of the learned Advocate for the
appellants that the finding in respect of the
idol is vitiated. In this view it is not necessary
to deal with any of the decisions referred to
before us."
The same interpretation must be given to Rule
137 as it conforms to reason and fair-play in the
determination of rights of parries by any Tribunal
whether it is a Court or not. Rule 137 does not
enable the Land Tribunal to make use of his
inspection report to base his conclusion. The object
of this provision is only to enable the Tribunal to
understand questions that are being raised and to
follow and apply the evidence. The purpose of local
inspection is not to bring fresh evidence on record
or to substitute it for evidence but is only to assist
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in the appreciation of the evidence. Unfortunately
this is not what has been done in this case. The
Tribunal's conclusion is entirely based on its
inspection report. Thus the procedure adopted by
the Land Tribunal in basing his conclusion on his
inspection report is clearly unjustified and illegal. It
cannot be supported in law.”
7. Considering the scope and object of Order XVIII
Rule 18 of the CPC, the principles that would emerge are
as follows:
(a) The Court may at any stage of a suit, inspect
any property or a thing upon which any
question may arise.
(b) The Court is vested with the power to make
inspection if it is necessary and when the court
is satisfied that without inspection it would be
impossible to assess the evidence and to
dispose of the lis.
(c) The Court can exercise suo motu power of
inspection or on an application of either party.
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(d) The object of Order XVIII Rule 18 of the CPC is
to understand the evidence on record by
inspecting the property in question to ascertain
certain factual aspects and to appreciate the
evidence on record. The exercise of power by
the Court under the aforesaid Rule should be
generally after recording the evidence in the
suit and only upon satisfaction that there is a
ambiguity on certain factual aspects.
(e) The exercise of power under Order XVIII Rule
18 of the CPC, should be used sparingly and
must not be done in a routine manner. The
exercise of power by the Court under the
aforesaid Rule is to avoid unnecessary
ambiguous interpretation of the evidence by the
parties, and the procedure is intended to
advance the cause of justice.
(f) The object of local inspection is to enable the
Court to understand the questions raised and to
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properly appreciate, follow and apply the
evidence adduced before it, and not to gather
independent evidence.
(g) The observations made by the Court during the
course of inspection, are required to be
recorded in the form of memorandum of facts
as soon as may practicable and the said facts
shall form a part of the record of the suit.
(h) The memorandum of facts cannot be the sole
basis to conclude the lis between the parties,
although it can be taken into consideration
while pronouncing the judgment. The said
memorandum of facts recorded by the Court
during the course of inspection must be used
merely as a tool to appreciate the evidence on
record and nothing beyond that, since the
parties neither have an opportunity to question
the facts recorded by the Court during the local
inspection nor have an opportunity to cross-
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examine the Judge. Hence, the Trial Court,
while referring to the contents of the
memorandum of facts recorded during the
inspection, must do so cautiously as the
memorandum of facts cannot, in itself, be
treated as a piece of evidence for answering the
issues or adjudicating the dispute between the
parties.
(i) The parties to the proceedings have a right to
argue on the correctness of the observations
recorded in the memorandum of facts by the
Court during the local inspection by pointing out
the pleadings and evidence on record.
(j) The local inspection by the Court and
consequential recording of the memorandum of
facts noticed during such inspection, is only for
the purpose of better understanding of the
evidence on record and to test its accuracy.
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(k) The Court cannot convert itself into an unofficial
investigator by making enquiries from persons
at the spot regarding the rights of the parties or
by relying upon extra-judicial information
gathered during the inspection. The power
under Order XVIII Rule 18 of the CPC is
confined to local inspection for enabling the
Court to understand the questions arising in the
suit.
(l) The Court cannot use the impressions or
opinions formed during local inspection to
contradict a witness or to determine the
truthfulness of the evidence of either the
plaintiff or the defendant.
(m) The Presiding Officer must remain neutral while
conducting local inspection and should not
become a party to the spot inspection or
conduct an enquiry in a manner which may
prejudice the rights of either party.
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(n) Failure to place or preserve the memorandum
or notes of inspection on record does not, by
itself, vitiate the entire trial. Such failure may
amount to an irregularity in the proceeding, but
would not, affect the merits of the case.
(o) Where expenses are required to be incurred for
such inspection, the requisite sanction of the
District Judge is necessary for levying or
incurring such expenses, in accordance with the
applicable procedural requirements.
8. In the case on hand, the petitioner filed a suit for
injunction against the respondents. In the said suit, the
petitioner-plaintiff filed an application for temporary
injunction. The respondents-defendants filed objections to
the said application. The Trial Court, on 14.07.2022,
heard the arguments of the learned counsel for the
plaintiff and adjourned the matter to 18.07.2022 for
defendants’ arguments. On 18.07.2022, the Court visited
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the suit schedule property and recorded the memorandum
of facts and thereafter, on the same day, heard the
arguments of the plaintiff and the defendants on an
application for temporary injunction filed by the plaintiff
and posted the case for orders on 12.08.2022. The
records indicate that the application for temporary
injunction was rejected by the Trial Court.
9. It is to be noticed that the inspection of the suit
schedule property conducted by the learned Presiding
Officer is at the stage of considering the application for
temporary injunction filed by the plaintiff. The scope and
object of Order XVIII Rule 18 of the CPC, referred supra
indicates that the exercise of power, though provided
under the CPC at any stage of the proceedings, is for the
purpose of better understanding of the evidence on record
and only on the Trial Court coming to the conclusion that it
is just and necessary to conduct the local inspection to
advance the cause of justice.
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10. In the present case, the Trial Court has
committed a grave error in prematurely exercising the
power under Order XVIII Rule 18 of the CPC even before
recording the evidence. It is to be noticed that the local
inspection was conducted on 18.07.2022 between
01.50p.m. to 02.10p.m. and in the memorandum of facts,
the Court referred to certain names of the persons, who
were stated to have been present during the inspection
and posed questions to them as to who is in possession of
the suit schedule property. In my considered view, such
exercise of power by the Trial Court, though available
under the law, was uncalled for at the stage of
consideration of the application for temporary injunction.
11. The contention of the learned counsel for the
respondents that unless the said memorandum of facts is
referred and the order is passed, it cannot be challenged,
is a correct proposition of law. However, considering the
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peculiar facts and circumstances of the case on hand,
allowing such memorandum of facts on record of the Court
would cause prejudice to the plaintiff. The memorandum
of facts indicates the aspect of the possession over the suit
schedule property, which was prematurely recorded and
hence, is required to be set aside.
12. For the aforementioned reasons, I proceed to
pass the following:
ORDER
i. The writ petition is allowed .
ii. The impugned proceedings dated 18.07.2022
recording the memorandum of facts in
O.S.No.290/2022 by the I Additional Civil Judge
and JMFC, Malavalli, is set aside.
No order as to costs.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV/List No.: 1 Sl No.: 1