Karnataka HC Upholds Land Survey Commissioner After Plaintiff’s Consent Was Recorded, Rejecting His Unsupported Claim Counsel Lacked Instructions

The petitioner, plaintiff in O.S. No. 158/2019, had filed a memo seeking withdrawal of the suit on the ground that the dispute had been settled; the defendants denied that any settlement had been reached

The defendants later applied under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC), for appointment of a Court Commissioner to measure the property. The trial court allowed the application, noting the petitioner’s consent; the petitioner had filed no objection to it

The Commissioner measured the property and submitted a report indicating encroachment by the petitioner. Nearly two years after the impugned order, the petitioner sought to have it set aside, contending that his former counsel had consented without his instructions

The defendants’ application for local investigation was made under Order XXVI Rule 9 CPC, which provides for the appointment of a Commissioner where a local investigation is requisite or proper for elucidating a matter in dispute

The High Court considered its supervisory jurisdiction under Articles 226 and 227 of the Constitution and held, in the circumstances of this case, that the trial court’s recorded proceedings and orders should be given due consideration over a later oral assertion unsupported by justifiable material

The trial court’s record showed that the petitioner had not objected to the Commissioner application and had consented to the appointment

His later claim that counsel acted without instructions was unsupported by material, and the respondents also pointed out that counsel continued to represent him in the suit after the order

Given the delay in challenging the order and that it had already been acted upon, the Court found no ground to intervene in its supervisory jurisdiction

It dismissed the writ petition as devoid of merit and bona fides and ordered the petitioner to pay the respondents costs of ₹5,000