Karnataka HC Orders Commissioner In Alleged 0.32-Cent Encroachment Dispute, Lets Plaintiffs Recall Defendant’s Witness On Payment Of ₹10,000 Costs

The petitioners, plaintiffs in O.S. No. 694/2021, sought a declaration that the respondent had encroached upon 0.32 cents of the Suit Schedule-C property.

The Trial Court rejected their application under Order XXVI Rule 9 CPC for appointment of a Court Commissioner.

It also rejected their application under Order XVIII Rule 17 CPC to recall DW1 for further cross-examination, including to confront him with a certified copy of a document marked as Exhibit P33 in another suit.

The petitioners challenged both orders under Article 227 of the Constitution.

Order XXVI Rule 9 CPC permits appointment of a Court Commissioner to investigate a matter requiring local examination.

The Court relied on the coordinate Bench decision in W.P. No. 201274/2022, dated 24 January 2023, which held that a Commissioner may be appointed in a boundary-encroachment dispute, including during trial, and that the report may assist the plaintiff in establishing the case.

Order XVIII Rule 17 CPC was the basis of the application to recall DW1.

The Court further held that, in the circumstances, any hardship to the respondent from recalling the witness could be addressed by imposing costs.

The alleged encroachment was disputed, and the Trial Court had rejected the Commissioner application on the ground that it would amount to collecting evidence for the plaintiff.

Applying the coordinate Bench’s ruling, the High Court held that this ground alone did not justify rejection in a boundary-encroachment dispute.

As to recall, although the petitioners had an opportunity to mark the document, the interval between its issue and closure of DW1’s cross-examination was very short; the Court therefore found no basis to doubt the application’s bona fides.

It considered costs sufficient to address any prejudice to the respondent.

It allowed I.A. No. 13 and directed the Trial Court to appoint a Court Commissioner; both parties were directed to file memoranda of instructions.

It also allowed I.A. No. 14 and ordered that DW1 be recalled for further cross-examination, to be completed on the date fixed by the Trial Court, subject to payment of ₹10,000 in costs to DW1.