Karnataka HC Allows Commissioner To Inspect Alleged Encroachment On Man’s Property, Rejecting Trial Court’s Evidence-Gathering Rationale

The petitioner sought appointment of the Assistant Executive Engineer, Zilla Panchayat Sub-Division, Lingasugur, as Court Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC), to inspect the suit property and ascertain the alleged encroachment and installation of iron pillars by the respondents

The respondents opposed the application, contending that a commission would amount to collecting evidence; the Trial Court rejected the application on that ground

The petitioner challenged that order in this writ petition

Under Order XXVI Rule 9 CPC, the Court has discretion to appoint a Commissioner for local investigation where the report is necessary to elucidate a matter in dispute.

As explained in Sri Shadaksharappa v. Kumari Vijayalaxmi and Others, W.P. No. 201274 of 2022, disposed of on 24 January 2023, 2023 SCC OnLine Kar 53; ILR 2023 Kar 3983, that discretion is not controlled by the form of the suit; the pleadings, issues and documents guide identification of the matter in dispute.

A Commissioner’s report is evidence for the Court’s consideration, but is not conclusive proof

The petitioner alleged that the respondents had encroached on his property and sought a local inspection to ascertain the extent of that encroachment

The High Court held that the Trial Court had rejected the application merely on the view that appointment of a Commissioner would amount to collecting evidence, without considering the principles in Shadaksharappa or whether an inspection would assist in elucidating the dispute

It therefore found the rejection arbitrary and erroneous