Karnataka HC Sets Aside Trial Court's Property Inspection Done Before Recording Evidence, at Stage of Temporary Injunction

The Karnataka High Court quashed a trial court's memorandum of facts recorded after a spot inspection conducted prematurely, before any evidence was led and while a temporary injunction application was pending.

The High Court of Karnataka at Bengaluru has set aside a memorandum of facts recorded by the I Additional Civil Judge and JMFC, Malavalli, after a spot inspection of suit schedule property carried out on 18 July 2022 — before any evidence had been recorded in the suit and while the plaintiff's application for temporary injunction was still pending. Justice Vijaykumar A. Patil, sitting singly, allowed Writ Petition No.15209/2022 filed under Article 227 of the Constitution of India and held that the trial court committed a grave error in prematurely exercising the power under Order XVIII Rule 18 of the Code of Civil Procedure, 1908. The court found that allowing such a memorandum to remain on record would cause prejudice to the plaintiff, since it contained observations on possession of the property at a stage when that question had not yet been tested through evidence.

The Dispute Before the High Court

The petitioner, Sri H.M. Manu, a resident of Channapattana Taluk, Ramanagara District, had filed a suit for permanent injunction—O.S.No.290/2022—before the I Additional Civil Judge and JMFC, Malavalli, against respondents Sri Marigowda and Smt. Chikkathayamma of H. Basavapura Village, Malavalli Taluk, Mandya District. The petitioner also filed an application for temporary injunction in that suit. The respondents filed objections to the application.

On 14 July 2022, the trial court heard arguments of the plaintiff's counsel on the temporary injunction application and adjourned the matter to 18 July 2022 for the defendants' arguments. On that very date, before hearing the defendants, the presiding officer visited the suit schedule property between 1.50 p.m. and 2.10 p.m. and recorded a memorandum of facts. The court then heard arguments from both sides on the temporary injunction application and posted the matter for orders on 12 August 2022. The application for temporary injunction was subsequently rejected.

The petitioner challenged both the proceedings dated 18 July 2022 recording the memorandum of facts and the notes of inspection recorded on the same date, by way of a writ petition under Article 227.

What Order XVIII Rule 18 of the CPC Actually Provides

Order XVIII Rule 18 of the Code of Civil Procedure, 1908, which sits under the heading “Hearing of the suit and Examination of Witnesses”, provides that a court may at any stage of a suit inspect any property or thing concerning which any question may arise. Where the court does inspect, it must, as soon as practicable, make a memorandum of relevant facts observed, and that memorandum forms part of the record of the suit.

The petitioner's counsel argued that while the power to visit the property is available to the presiding officer, it cannot be exercised at the initial stage of the proceedings, especially when an application for temporary injunction is pending and before any evidence is on record. Counsel pointed out that although the memorandum of facts was not expressly referred to in the order rejecting the temporary injunction, the finding that the petitioner was not in possession of the property — recorded in that memorandum — would have weighed on the court's mind when rejecting the application.

The respondents' counsel countered that the writ petition was premature. The presiding officer had merely observed certain facts and recorded them. Unless the memorandum was actually relied upon in passing an order, it could not be challenged by way of a writ petition at that stage.

How the Court Analysed the Scope of Local Inspection

Justice Patil examined Order XVIII Rule 18 with reference to a series of decisions from the Supreme Court and various High Courts before distilling a set of governing principles.

In Ugamsingh and Mishrimal v. Kesrimal and Others, AIR 1971 SC 2540, the Supreme Court had held that a trial court's judgment would be vitiated only if it was based solely on observations made during inspection, and that inspection is meant for understanding the evidence in the case. The Karnataka High Court, in B.T. Krishnappa v. Principal Munsiff, Kolar and Others, AIR 1980 KAR 106, held that inspection is conducted in the presence of parties and records what is found, with any arbitrariness correctable on appeal or in revision. In Shree Shree Vishwothama Theertha Swamigal v. Sri H. Balaraj, ILR 2007 KAR 3856, this court held that a court's observation at inspection can only be used to better follow and understand the evidence already adduced, and not to collect evidence.

The court placed particular weight on Shrikant v. Subhas, Since Deceased by his LRs., ILR 2016 KAR 297, which clarified that the words “at any stage of a suit” in Order XVIII Rule 18 permit inspection before evidence is recorded, during recording, or after evidence is concluded and before judgment — but that there must be some purpose and the power cannot be used to assess or believe the statements of witnesses against each other. That judgment had also observed, significantly, that conducting the trial and examination of witnesses should logically precede a local inspection, and not the other way around.

In Binny Ltd. v. H.K. Madiah, MANU/KA/0284/1986, the Karnataka High Court had gone further and held that local inspection shall be conducted only after recording evidence, since holding it before evidence is placed on record amounts to putting the cart before the horse and creates an impression in the tribunal's mind that results in pre-judging the issue. The Madras High Court in S.J. Raman Photo Studio and Others v. A.K.M. Noore and Others, MANU/TN/0349/1986, had similarly read the placement of Rule 18 at the end of Order XVIII as an indication that it is to be used only when, after hearing evidence, the court feels it cannot appreciate the evidence without a local inspection.

Drawing on these authorities, Justice Patil formulated fifteen principles governing Order XVIII Rule 18. Among the most relevant to the case at hand: the power, though available at any stage, is for the purpose of better understanding evidence already on record; it should generally be exercised after recording evidence and only when the court is satisfied there is ambiguity on certain factual aspects; the power must be used sparingly and not in a routine manner; the memorandum of facts cannot be the sole basis to decide a dispute and cannot substitute for evidence; the court cannot convert itself into an unofficial investigator by questioning persons present at the spot; and the court cannot use impressions formed during inspection to contradict a witness or determine truthfulness of either party's evidence.

The court also noted that parties have a right to argue on the correctness of observations recorded in the memorandum by pointing to pleadings and evidence, and that the presiding officer must remain neutral during inspection and must not conduct it in a manner that may prejudice either party's rights.

Why the Inspection in This Case Was Found Premature

Applying these principles to the facts, Justice Patil found that the trial court had committed a grave error. The inspection on 18 July 2022 was conducted at the stage of considering the temporary injunction application — before a single witness had been examined and before any evidence was on record in the suit. The memorandum of facts recorded during that inspection between 1.50 p.m. and 2.10 p.m. referred to certain persons who were stated to have been present and recorded the court's questions to them about who was in possession of the suit schedule property.

The court found this exercise of power under Order XVIII Rule 18 — though technically available to the presiding officer — to be uncalled for at that stage. The memorandum contained observations going directly to the question of possession, which was the very issue that would determine the outcome of both the temporary injunction application and eventually the suit itself. Allowing such a memorandum to remain on record would cause prejudice to the plaintiff. The possession-related finding had been prematurely recorded and the memorandum was therefore required to be set aside.

The court acknowledged the respondents' argument that a challenge to the memorandum was premature unless it was actually referred to in an order — and accepted that this is ordinarily the correct position in law. However, having regard to the peculiar facts and circumstances of this case, Justice Patil held that the prejudice to the plaintiff was sufficient to justify interference at this stage.

Outcome

The writ petition was allowed. The impugned proceedings dated 18 July 2022 recording the memorandum of facts in O.S.No.290/2022 by the I Additional Civil Judge and JMFC, Malavalli, were set aside. No order was made as to costs.