Vineet Kothari, J. - (1.)The plaintiff- Smt. Anitha Dev, W/o. late Dr. Ahamindra Dev has filed this Writ Petition under Article 227 of the Constitution of India, aggrieved by the Order dated 03/01/2017 passed by the learned Trial Court in O.S.No.3391/2014 (Smt. Anitha Dev Vs. Smt. Susheela Bai and another).
(2.)By the impugned Order, the learned Trial Court has rejected the Application filed by the plaintiff under Order 26 Rule 9 Read with Section 151 of the Civil Procedure Code for Appointment of a Commissioner for ascertaining the actual position of the Site construction which, according to the plaintiff, was illegally being undertaken by the first Defendant/Respondent in the present Injunction Suit. The relevant reasons given by the learned Trial Court in the impugned Order dated 03/01/2017 are quoted below for ready reference:-
"In the instant case, the plaintiff has filed the suit against the defendants for declaration to declare that she has easementary right of light and air from the 'B' schedule property to her 'A' schedule property, Mandatory Injunction for demolition of the unauthorized construction put up in the mandatory setback area on the southern, northern and eastern side of schedule 'B' property and for permanent injunction restraining the 1st defendant from putting up construction on schedule 'B' property in violation of approved building plan and byelaws in setback areas and also to direct the 2nd defendant BBMP to remove the unauthorized construction made by the 1st defendant in the setback area in violation of approved building plan and Building Byelaws on schedule 'B' property and see that further construction is put up thereon, strictly in accordance with approved building plan and costs, etc. The suit of the plaintiff is resisted by the 1st defendant and filed written statement denying the material averments/allegations of the plaint and case of the plaintiff. On the pleadings of both parties, issues have been framed. The plaintiff and 1st defendant have adduced their evidence and closed their respective sides. Thereafter, the matter was posted for arguments. At this stage, the plaintiff has filed the present application praying to appoint a Commissioner to find out whether schedule 'B' property is being constructed in accordance with approved building plan and if not what are the violations made by the 1st defendant in construction of schedule 'B' property an to report the same to the Court. Already, the contesting parties have adduced evidence in support of their case. The parties have to prove their case by adducing their evidence. On the other hand, the plaintiff has not shown reasonable grounds that the available evidence on record is insufficient for effective adjudication of the matter in controversy. Though the plaintiff contended regarding 1st defendant seeking for appointment of a Court Commissioner, as such she would stand to gain by the appointment of the Commissioner now etc., but she herself got marked certified copy of the said application filed under Or.XXVI Rule 9 r/w Sec.151 of CPC at Ex.P.12 wherein the 1st defendant herein sought appointment of Court Commissioner for local investigation to insect plaint schedule 'A' & 'B' properties and report about violation if any in the said properties, whereas, the instant application filed to appoint a Commissioner in respect of only 'B' schedule property, as such, said contention of the plaintiff, is untenable. Considering the materials on record, the plaintiff has not shown reasonable grounds to appoint a Commissioner as prayed, accordingly, I answer Point No.1 in the negative."

(3.)The learned counsel for the plaintiff - petitioner relying upon the decision of the learned Single Judge of this Court in the case of Smt. Rathnamma Vs. Ademma, (2010) 3 KarLJ 130 submits that where the parties have not placed sufficient material on record to show that the evidence available on record is sufficient for effective adjudication of the case, then in such a circumstance, the Court ought to have appointed a Commissioner to ascertain the correct factual position.