A commissioner may be appointed before issues are framed to clarify a disputed pathway relevant to interim relief.

The plaintiff sued for a declaration of an easementary right over a pathway and for permanent injunction.

The defendants denied that the pathway existed and asserted that an alternative road was available.

While the plaintiff’s application for temporary injunction remained pending, he sought appointment of a Court Commissioner to ascertain whether the pathway shown in the plaint existed.

The Trial Court allowed the application.

The defendants challenged that order under Article 227, contending that appointment of a Commissioner was premature before issues were framed and that the survey should also cover the alleged alternative road.

1. Whether the Trial Court was justified in appointing a Court Commissioner before issues were framed, in view of the dispute over the existence of the claimed pathway.

2. Whether the Commissioner’s remit should also include ascertaining the existence of the alternative road asserted by the defendants.

Order XXVI Rule 9 of the Code of Civil Procedure governs the appointment of a Court Commissioner for local investigation.

The Court relied on Sri Shadaksharappa S/o Veranna v. Kumari Vijayalaxmi and Others, ILR 2023 KAR 3983, particularly paragraph 13, in upholding the Trial Court’s decision to entertain the application at the trial stage in the circumstances of the case.

The Court also held that the defendants’ assertion of an alternative road was a matter for them to prove by adducing evidence.

The plaintiff specifically claimed that a pathway existed and had been used over time; the defendants expressly denied its existence.

The Court considered that resolving this factual dispute was necessary while the plaintiff’s temporary-injunction application was pending.

Applying the cited precedent, it held that the Trial Court was justified in appointing a Commissioner despite the objection that issues had not yet been framed.

As to the alternative road, the plaintiff had not sought an investigation into it; because that assertion was the defendants’ contention, its proof was for the defendants through evidence.

Finding no merit in the writ petition, it rejected the petition and left the Trial Court’s order allowing the Commissioner application undisturbed.