TaxTMI 
TaxTMI 
2023 (1) TMI 1526
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....d counsel Sri Mahantesh Patil, appearing for the petitioner would submit that, the plaintiff is complaining about the encroachment on a portion of the suit road, and the defendant has denied the allegation of encroachment, both in the written statement as well as in the cross-examination of the plaintiff. The plaintiff with a view to produce best possible evidence moved an application for local inspection. This being the position, the order rejecting the application for appointment of a Court Commissioner for local inspection is unsustainable. 3. Learned counsel Sri Sanjay Kulkarni, appearing for the first respondent opposed the petition contending that; (a) The application for appointment of a Commissioner for local inspection in a suit for a permanent injunction is impermissible. (b) If the Commissioner is appointed and the report is secured, the same amounts to collection of evidence which is also impermissible. (c) The application for local inspection before completion of the trial is not contemplated in the scheme of Order XXVI of the Code. 4. Though the application is filed under Order XXVI Rule 10-B, of the Code, the contentions raised, have ....
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.... a) If the court deems that local investigation is necessary for elucidating any matter in dispute; b) For ascertaining the market value of any property, or any mesne profits or damages or annual net profits. 7. The expression `Court deems a local investigation to be requisite' appearing in the provision makes it apparent that the discretion lies with the Court whether to appoint a Court Commissioner or not. However, discretion is not unbridled. To understand the scope of Order XXVI Rule 9 of the Code, the provision has to be read along with Order XXVI Rule 10 of the Code. 8. Order XXVI Rule 10 of the Code of Civil Procedure reads as under :- "Rule 10 Order XXVI of Code of Civil Procedure - Procedure of Commissioner .- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (2) Report and depositions to be evidence in the suit .- The report of the Commissioner and the evidence taken by him (but not the evidence without_the_report) shall be evidence in the suit and shall for....
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....lection of evidence and for this reason the application is maintainable is not a valid, not contention. On the other hand, the party to a suit in an appropriate proceeding is enabled under the law to prove his case through the report of the Commissioner. Thus, in a given case that calls for the appointment of a Commissioner, if the application is rejected, the same amounts to a denial of permission to lead evidence. 11. The appointment of a Commissioner for local inspection, scientific/forensic investigation/expert's opinion is indeed to secure the evidence and the same is not only permissible but also desirable in certain cases. The report, given the intrinsic complexities of matter in a case, may go a long way in arriving at a just decision or assisting the court to appreciate the other evidence on record or fact situation in a proper perspective. If the report of the Commissioner is nothing to do with the subject matter in dispute, then there cannot be an order appointing the Commissioner. Order appointing a Commissioner can be made only if the Commissioner's report becomes a relevant piece of evidence. That being the position, the contention that the appointment of c....
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....en with due regard to the possibility of reducing or eliminating the need to record the oral evidence of witnesses to prove an issue which could be effectively decided with the aid of the report. More often than not, in disputes relating to the existence of pathway, stream, pond, well, or disputes relating to the boundary between adjoining holders, encroachment, easement of air and light, construction of building in violation of setback rules, or relating to the authenticity of a document, signature/thumb impression to name a few by way of illustration, a report secured before the trial may cut short the trial in as much as the party relying upon the report may not examine multiple witnesses to prove the matters covered by the report. The party may simply rest his case based on his evidence and the report. In a given case, the appointment of the Commissioner before the commencement of the trial may facilitate a focused trial. In the case of Bhimappa Rayappa Chougala v. Shrikant, 2014 SCC OnLine Kar 12277 : (2014) 2 KCCR 1652 at page 1653, the Co-Ordinate Bench of this court has held as under : "4. xxx Only if the plaintiffs can show that the defendants have encroached upon....
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....annual net profits. xxx" (emphasis supplied) This being the position, the application for appointment of Commissioner cannot be rejected on the premise it amounts to collection of evidence or on the premise that it is not permissible looking into the form of the suit. If the Court deems it fit that the report is necessary to elucidate the matter in dispute then the application for local inspection has to be allowed. 18. For the reasons discussed above, the contention taken by defendant/respondent No.1 that the appointment of a Court Commissioner, in this case, amounts to collection of evidence does not merit consideration at all. The burden of proving the alleged encroachment is on the plaintiff. Instead of voluminous oral evidence, if the petitioner seeks to prove his contention relating to encroachment through the report of the Commissioner, the prayer for local inspection should be willingly granted unless there are justifiable reasons for the court to take a view that the local inspection is a futile exercise. For this reason, this Court is of the view that the Trial Court committed a grave error in not appointing a surveyor for local inspection. 19. Consideri....
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....ng due regard to the nature of the controversy, if the report is essential for elucidating the matter in dispute, it is desirable to have the local inspection before the commencement of trial as it is likely to reduce the volume of oral evidence in a given case. f) In addition to the report, having regard to Order XXVI Rule 10 of the Code, the evidence taken by Commissioner reduced in writing can also be taken on record and examined by the court while considering the report. g) The report of the Commissioner is not conclusive proof of what is stated therein. The report is only a piece of evidence, that the Court has to examine based on the other materials on record. h) Report of the Commissioner need not be formally marked for being considered as evidence. Once submitted to the court, the report is part of the court record and can be looked into by the court. i) The court may in its discretion examine the Commissioner on any matter concerning the report. There is no compulsion to examine the Commissioner. However, if the objection is filed to the report, and the party filing objection seeks to examine the Commissioner then the Commissioner should....
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....me is spent awaiting the report. To save the precious time of the court and to streamline the procedure, as far as practicable, the following procedures may be adopted ;- a) The Court may fix the date and time for local inspection, directing the parties to be present at the disputed property, to avoid the process of issuance of notice to the parties by the Court Commissioner. b) The court shall also fix the time frame for the parties to file a memo of instructions and shall scrutinize the instructions submitted and if need be reframe the instructions to focus the attention on the matters in dispute. c) If the court feels that the Commissioner is required to submit a report on a particular matter or a question, the court shall also frame the specific question to be answered by the Commissioner. d) It is desirable to specify in the order whether or not the parties are entitled to submit an additional memo of instructions to the Commissioner at the time of local inspection e) The time frame be fixed for submitting the report to the Court and while fixing the time, due regard must be had to the nature of the commission work and the urgency i....