A repeat commissioner is unwarranted where the same property was previously surveyed and its boundaries are undisputed.

The plaintiffs in O.S. No. 320/2011 sought declaration and injunction concerning an alleged six-foot passage over open space VPC No. 27, claiming they had used it for access to their properties and that the defendants were obstructing it.

The defendants denied that the passage existed, asserted that an alternative road was available, and relied on an earlier suit concerning the same passage and a commissioner’s report from that litigation.

The plaintiffs’ application under Order XXVI Rule 9 read with Section 151 CPC for a further local inspection was rejected by the Trial Court. They challenged that rejection under Articles 226 and 227 of the Constitution.

The judgment identifies the impugned order as dated 07.11.2025, although the petition’s prayer refers to 07.11.2020.

1. Whether a further Court Commissioner should be appointed under Order XXVI Rule 9 CPC to inspect or measure the disputed passage in the subsequent suit.

2. Whether the Trial Court’s refusal to appoint a commissioner warranted interference under Articles 226 and 227 of the Constitution.

Order XXVI Rule 9 CPC provides for appointment of a commissioner for local investigation where such investigation is warranted to elucidate a matter in dispute; Section 151 CPC preserves the court’s inherent powers.

The Court relied on Annappa Mestha v. Muthaiah Achari, ILR 2002 KAR 3599, for the principle that a commissioner may be appointed when the dispute cannot be determined from the record or evidence, but that a further appointment is not proper where a commissioner has already reported on the same property and the evidence is not complete.

The Court also treated the absence of a dispute about the property’s boundary or identification as relevant to whether a fresh commission was necessary.

The Court found that a commissioner had already been appointed in the earlier litigation to measure the same property and that the resulting report was produced in the present suit.

Given that prior report and the Trial Court’s finding that no boundary or identification dispute required local investigation, the Court held that another commission was unwarranted and would not assist determination of the plaintiffs’ case.

It therefore found no basis to interfere with the Trial Court’s order.

The Trial Court was directed to dispose of the suit as early as possible, and both parties were directed to cooperate without further delay; any pending interlocutory applications were dismissed.