Karnataka High Court
Sri Ramakrishnappa vs S M Jayaramappa on 14 August, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF AUGUST, 2014
BEFORE
THE HON' BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION NO. 35600/2014 (GM-CPC)
BETWEEN:
1. Sri Ramakrishnappa,
Aged about 42 years,
S/o Sri Munishamappa
2. Sri Narayanaswamy,
Aged about 52 years,
S/o Sri Hucheerappa
3. Sri Munikrishnappa,
Aged about 42 years,
S/o Sri Muniyappa
Petitioners are residing at
Adappanahalli village,
Sulibele Hobli, Hosakote Taluk,
Bangalore Rural District-562 114.1 ... PETITIONERS
(By Sri M.V. Chandra Shekara Reddy, Advocate)
AND:
S.M. Jayaramappa,
Aged about 50 years,
S/o late Munishamappa,
R/at Adappanahalli village,
Sulibele Hobli, Hosakote Taluk,
Bangalore Rural District-562 114. ... RESPONDENT
...
This writ petition is filed under Articles 226 and
227 of the Constitution of India praying to issue a writ
2
of certiorari quashing the order dated 14.7.2014
under Annexure-A passed by the Additional Civil
Judge and JMFC at Hosakote in O.S.No.153/2002
rejecting the I.A. filed by the petitioners under Order
XXVI Rule 9 of the Code of Civil Procedure and
consequently allow the application seeking
appointment of commissioner.
This writ petition coming on for Preliminary
Hearing this day, the Court made the following:
ORDER
Heard the learned Counsel for the petitioners, who are said to be the defendants in a pending suit and are said to have raised serious contentions about the boundaries of the suit schedule property not tallying with the title deeds that were produced by the plaintiff and other contentions as regards the identity and location of the property. Notwithstanding the same, evidence having been completed in respect of the serious pleadings raised by the defendants and after completion of evidence, the present petitioners had filed an application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, seeking appointment of a Court 3 Commissioner in order to clarify the actual position on a spot inspection of the plaintiff's property as well as the defendants' property. The plaintiff also had no objection to the appointment of such a Commissioner. However, the Court below has rejected the application and therefore, the petitioners are before this Court.
2. Paragraph-10 of the impugned order reads as follows:
"10. In the present suit there is neither allegation of encroachment nor conflicting versions regarding the location of the suit schedule property. No doubt the defendants have alleged that the plaintiff has furnished wrong boundaries to the suit schedule properties. Therefore, it is for the plaintiff to prove the measurement and boundaries of the suit schedule properties with cogent and convincing evidence. If the plaintiff fails in that regard he would not be entitled to the reliefs as sought for in the suit. That apart, the defendants also can prove their 4 contentions by producing cogent and convincing evidence. Therefore, the decisions referred supra are of no avail to the case of the defendants. In view of the above, I am of the considered opinion that there is no necessity to appoint court commissioner as sought for in the above application. Accordingly, I answer point No.1 in the negative."
The Court below has clearly held that it is not necessary, in its discretion, to appoint a Court Commissioner and it is clear from the above reasoning of the Court below, that it did not feel the necessity to appoint a Court Commissioner and therefore, has rightly rejected the application. The petitioners seeking to contend that it is just and necessary to appoint a Court Commissioner, is a view of the petitioners and would not be binding on the Court below. It is clearly the discretion of the Court as to whether it needs the assistance of a Court Commissioner or not, and the Court below 5 having opined in the negative, it cannot be the subject matter of challenge.
The petition is accordingly disposed of.
Sd/-
Judge Nsu/-