Karnataka High Court Sets Aside Trial Court's Spot Inspection In Property Suit, Says It Must Generally Follow Recording Of Evidence

The Karnataka High Court has held that the power of a trial court under Order XVIII Rule 18 CPC to inspect a suit property and record a memorandum of facts must ordinarily be exercised only after evidence has been recorded in the suit.

ORDER XVIII pertains to hearing of the suit and examination of witnesses wherein Rule 18 states that  Court may at any stage of a suit inspect any property or thing concerning which any question may arise [and where the Court inspects any property or thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit. 

Justice Vijaykumar A. Patil set aside a memorandum of facts recorded by a Malavalli trial court, holding that in the present case the trial court has “committed a grave error in prematurely exercising” the power to inspect suit property.

Referring to several Apex Court and High Court rulings— Ugamsingh & Mishrimal v. Kesrimal, BT Krishnappa vs. Principal Munsff, Kolar, and others— on the scope and objective of the trial court's power to inspect under Order XVIII Rule 18 of the CPC, the High Court laid down principles concerning the exercise of this power.

The Court said, “The object of Order XVIII Rule 18 of the CPC is to understand the evidence on record by inspecting the property in question to ascertain certain factual aspects and to appreciate the evidence on record. The exercise of power by the Court under the aforesaid Rule should be generally after recording the evidence in the suit and only upon satisfaction that there is ambiguity on certain factual aspects.”

It added, “The exercise of power under Order XVIII Rule 18 of the CPC, should be used sparingly and must not be done in a routine manner. The exercise of power by the Court under the aforesaid Rule is to avoid unnecessary ambiguous interpretation of the evidence by the parties, and the procedure is intended to advance the cause of justice. The object of local inspection is to enable the Court to understand the questions raised and to properly appreciate, follow and apply the evidence adduced before it, and not to gather independent evidence.”

The Court was hearing a petition, seeking to set aside the proceedings wherein the trial court, while hearing an application for temporary injunction filed by the petitioner, had recorded memorandum of facts during a suit property inspection. The petitioner alleged that the power to inspect and note the memorandum of facts was not permissible before recording the evidence in the matter.

The Court said that the memorandum of facts recorded by the court during the inspection should merely act as a tool to appreciate the evidence, as at the time, the parties neither have an opportunity to question the facts recorded by the Court during the local inspection nor have an opportunity to cross-examine the Judge. Thus, the memorandum of facts cannot be the sole basis to adjudicate on a dispute, though it can be taken into consideration while pronouncing the judgement.

“The Trial Court, while referring to the contents of the memorandum of facts recorded during the inspection, must do so cautiously as the memorandum of facts cannot, in itself, be treated as a piece of evidence for answering the issues or adjudicating the dispute between the parties,” the Court noted.

Justice Patil said that while exercising the power, the trial courts cannot assume the role of an unofficial investigator.

“The Court cannot convert itself into an unofficial investigator by making enquiries from persons at the spot regarding the rights of the parties or by relying upon extra-judicial information gathered during the inspection,” the Court said.

In the case on hand, the High Court noted, “In the present case, the Trial Court has committed a grave error in prematurely exercising the power under Order XVIII Rule 18 of the CPC even before recording the evidence.”

Setting aside the proceedings recording the memorandum of facts, the Court held, “The memorandum of facts indicates the aspect of the possession over the suit schedule property, which was prematurely recorded and hence, is required to be set aside.”

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