JUDGMENT 1. Petitioners being the fourth & fifth opponents in the contesting respondents appeal in R.A.No.30/2018 have knocked at the doors of Writ Court for assailing the Order dated 28.04.2018, a copy whereof is at Annexure-A, whereby Court Commissioner has been appointed for conducting local inspection of the road in question and to make a report thereon; in W.P.No.27809/2018, they are calling in question the order dated 02.06.2018, a copy whereof is at Annexure A, whereby the order of temporary injunction has been extended on the basis of the Memo filed by the respondent-appellants; both these orders are made by the learned Principal Senior Civil Judge Mangaluru, D.K. District. 2. After service of notice, respondents having entered appearance through their counsel resist the writ petitions making submission in justification of the impugned orders; both the writ petitions are taken up for final disposal together, with the consent of the Bar, since common questions of law and facts arise between the same parties and both the impugned orders emanate from the very same appeal still pending on the file of the Court below. 3. Learned Senior Advocate Mr.B.V. Acharya submits that the impugned order appointing Court Commissioner is unsustainable in the absence of an application seeking leave of the Appellate Court for production of additional evidence in terms of Order XLI Rule 27 of CPC, 1908; even otherwise, the application filed under Order XXVI Rule 9 of CPC, 1908 could not have been taken up for consideration independent of the appeal itself; he also finds fault with the impugned order extending the temporary injunction only on the basis of Memo instead of an application; he also submits that already the entire construction of the building in question having been accomplished, what remains is the peripheral works such as some plastering and interiors; and therefore, there was no justification for the extension of the restraint order any longer; these aspects having not been adverted to by the court below despite urgement, Mr.Acharya submits, the impugned orders are infected with infirmities that render them vulnerable for challenge in writ jurisdiction. 4. 4. Learned counsel for the contesting respondents per contra contend that the appointment of the Court Commissioner is made by the learned Judge of the Appellate Court in his discretion so that Commissioners report would throw light on the width of the existing road and any encroachment by way of construction of buildings; such discretionary orders do not merit deeper examination at the hands of writ court, in the absence of any prejudice caused to the petitioners thereby; in any circumstance, petitioners will have opportunity of opposing the report if and when made adverse to their interest; that being the position, there is no merit in the challenge, regardless of arguable irregularities in the impugned order. 5. Learned counsel for the contesting respondents further contends that there was already an injunction order which was in operation for long period; the same having expired, the learned Judge of the Appellate Court again in his discretion has extended the same that too on the basis of a Memo filed on behalf of these respondents and therefore, the same cannot be faltered, even if no application supported by an affidavit was filed seeking extension; he also disputes that the entire construction of the building is accomplished stating that some minor civil works are still due apart from interiors and therefore, there was justification for extension of the injunction order; so contending he seeks dismissal of the Writ Petitions; the panel counsel for the Municipal Body maintains equi-distance from both the belligerent sides. 6. 6. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court grants indulgence in the matter because: AS TO ORDER APPOINTING COURT COMMISSIONER a) ordinarily, courts will appoint a Commissioner for conducting spot inspection and submitting report when there is dispute as to the identity, location, extent and nature of the property or any construction existing or undertaken in such property; Commissioners report and the evidence taken by him becomes evidence and shall form part of the record by virtue of Order XXVI Rule 10(2) of the Code, as rightly submitted by Mr.Acharya; if it was a suit, perhaps there was no much problem at all for the appointment of Commissioner; however, the suit having been dismissed, in appeal, the Commissioner could not have been appointed merely by treating the application filed by the contesting respondents under Order XXVI Rule 9 of CPC, 1908; the right course for the respondents was to make an application under Order XLI Rule 27 seeking leave of the Appellate Court for production of additional evidence namely the report of the Commissioner; this view is consistent with the decision of a Co-ordinate Bench of this Court in the case of Ghaleppa v. Gundeppa, 1981 1 KLJ 401 ; b) there is force in the submission of Mr.Acharya that ordinarily, in the absence of such an effort having been made in the suit itself, the parties in their appeal straight away cannot seek appointment of the Court Commissioner without establishing cogent grounds therefor; the Co-ordinate Bench in the decision supra has observed as under: '.The application has been made (I.A.III) under Order 41 Rule 27 CPC. That provision is available only for leading additional evidence. Having regard to the amendment made in Karnataka to Rule 27 of Order 41, the applicant-appellant has not made out any ground for allowing his application inasmuch as why this was not done in the trail Court or the first Appellate Court is not disclosed. That provision is available only for leading additional evidence. Having regard to the amendment made in Karnataka to Rule 27 of Order 41, the applicant-appellant has not made out any ground for allowing his application inasmuch as why this was not done in the trail Court or the first Appellate Court is not disclosed. Additional evidence even if it be in the form of a Commissioners report can be taken only if the conditions imposed for receiving such evidence under Rule 27, Order 41 are satisfied, Appellant, in the application has not even attempted, to satisfy those conditions.' c) as already mentioned above, the report of the Commissioner along with his evidence on which it is structured becomes additional evidence and constitutes part of the record by virtue of Order XXVI Rule 10(2); therefore, there was requirement of another application in terms of Order XLI Rule 27; it has been a settled position of law that the latter application needs to be taken up along with the main matter i.e., the appeal itself for consideration; in other words, even the application for appointment of the Commissioner could not have been considered independently of the appeal itself vide Satish Kumar Gupta and Others v. State of Haryana and Others, vide (2017) 4 SCC 760 ; AS TO ORDER EXTENDING TEMPORARY INJUNCTION d) Mr.Acharya submits and this court thinks it rightly, that it is ordinarily open to the court to extend the order of temporary injunction by acting upon a Memo if special circumstances do exist dispensing with a formal application; however, as rightly pointed out, when the order of injunction has already expired, the ideal way is to seek extension by filing an appropriate application supported by an affidavit so that the other side will have an opportunity to oppose the same; a Memo does not merit opposition by a counter memo; the order of temporary injunction was granted by the Court on 19.03.2018 for a period of two months which expired on 18.05.2018; the Memo was filed on 28.05.2018 on the basis of which extension of temporary injunction has been granted, i.e., ten days after the earlier order had expired; in the interregnum, what development took place has not been adverted to; e) the above apart, the material including the photographs prima facie show that the construction has already been accomplished and what remains is only the interior works; may be that some plastering work here and there is also pending; pre-Monsoon rains are not unlikely in the region concerned; the accomplishment of interior works and even whatever little plastering work that is due would not prejudice the case of other side; the justice of the case warrants interdiction of further construction during the pendency of the appeal, however with liberty to accomplish interior works or such other insignificant jobs. 7. In the above circumstances, these writ petitions succeed; a Writ of Certiorari issues quashing both the impugned orders; the petitioners shall not undertake any further construction of the structure in question till after the disposal of the appeal except the interior and other insignificant works; whatever construction that has been allegedly done shall be subject to the result of the appeal and the petitioners shall not plead equity. 8. Liberty is reserved to the respondent-appellants to move appropriate application under Order XXVI Rule 9 for appointment of Court Commissioner and another application under Order XLI Rule 27 of the Code, for leave to produce additional evidence, in accordance with law. 9. All contentions of the parties are kept open. Costs made easy.