Karnataka High Court
Sri M Shankara vs Smt Parvathamma @ Kamalamma on 18 March, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.25039/2012 (GM-CPC)
BETWEEN:
SRI M SHANKARA
AGED ABOUT 47 YEARS
S/O N P MAHADEVAIAH,
R/AT D NO.1683, THOPINA BEEDI,
GOWRIGATTA STREET,
NANJANGUD TOWN. ...PETITIONER
(BY SRI RAKSHITH JOIS Y.P FOR
SRI T.N. RAGHUPATHY, ADV. )
AND:
SMT. PARVATHAMMA @ KAMALAMMA
AGED ABOUT 61 YEARS,
W/O LATE N NAGARAJU,
R/AT 13TH CROSS, EXTENSION,
NANJANGUD TOWN. ...RESPONDENT
(BY SMT. GEETHA DEVI M.P. FOR
M/S. M.P. ASSOCIATES, ADVS. )
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT
THE ORDER DATED 4.7.2012 PASSED BY THE LEARNED
PRINCIPAL CIVIL JUDGE (JR.DN.) & JMFC, NANJANGUD ON I.A.
NO.IV IN O.S.NO.277/2010 VIDE ANNEXURE-F IS ILLEGAL AND
QUASH THE SAME.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Respondent has filed O.S.No.277/2010 against the petitioner in the Court of Civil Judge at Nanjangud to pass a judgment and decree declaring that she has a right of way over the suit B schedule pathway and restrain the defendant and persons claiming under him from interfering in any manner with the plaintiff's right to exercise her right of way over suit B schedule property and for consequential reliefs. Written statement was filed on 28.10.2010. Based on the pleadings, issues have been raised. When the suit was at the stage of plaintiff's evidence, I.A.4 was filed by the plaintiff to appoint a Court Commissioner to conduct local inspection i.e., for measurement of suit B schedule pathway. Despite the objections raised by the defendant, learned Trial Judge has allowed the application by an order dated 04.07.2012. Assailing the said order, the defendant has filed this writ petition.
2. Heard learned counsel on both sides and perused the writ record.
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3. Undeniably, the trial of the suit is not complete. Prior to the completion of the trial, I.A.4 has been filed. No doubt, the dispute is with regard to the width of the pathway. Since both parties can adduce evidence with regard to the their respective claims regarding width of the pathway in dispute, unless the trial is complete, there cannot be any appointment of a Commissioner to conduct local inspection and to measure the property. At this stage, such an application would amount to collection of evidence and the same is not permissible.
4. In the case of MISS RENUKA Vs. SRI TAMMANNA AND OTHERS reported in ILR 2007 KAR 3029, wherein, it has been held that:
" 7. It is settled position of law that Court Commissioner cannot be appointed to collect evidence in support of a claim. After completion of evidence on both the sides, if it is found that there is any ambiguity in the evidence adduced by the parties, then the Court may appoint a Commissioner for the purpose of clarification of such an ambiguity. In the instant case the evidence is not yet commenced and therefore the question of ambiguity in the evidence will not arise at this stage."4
5. In the aforesaid view of the matter, I.A.4 ought to have been rejected as premature. Impugned order has been passed on account of a misdirection adopted in the matter and there is procedural impropriety. Hence, the same cannot be sustained.
In the result, writ petition is allowed and the impugned order is quashed. I.A.4 filed in the suit at this stage being premature, stands dismissed accordingly.
After the trial of the suit is completed, in case, there is a need and if either of the parties were to make an application for appointment of a Court Commissioner to conduct local inspection with regard to the width of the pathway in dispute, the Trial Court is at liberty to consider such a prayer and pass order without taking into consideration the impugned order passed on I.A.4.
Sd/-
JUDGE sac*