Sreeprasad vs T R Sreerangaiah on 23 August, 2018

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Karnataka High Court

Sreeprasad vs T R Sreerangaiah on 23 August, 2018

Bench: Dinesh Maheshwari

                                       W.P.No.17185/2018
                           -1-




   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD DAY OF AUGUST, 2018

                        BEFORE

HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE

        WRIT PETITION NO.17185 OF 2018 (GM-CPC)

  BETWEEN

  1. SREEPRASAD
  AGED ABOUT 45 YEARS,
  S/O SRINIVASA
  GORAVANAHALLI, KASABA HOBLI,
  KORATAGERE TALUK,
  TUMKUR DISTRICT,
  KARNATAKA-572129.

  2. G P SREE LAKSHMI
  AGED ABOUT 35 YEARS,
  W/O SREEPRASAD
  GORAVANAHALLI, KASABA HOBLI,
  KORATAGERE TALUK,
  TUMKUR DISTRICT,
  KARNATAKA-572129.

  3. G P SUBRAMANYAM
  AGED ABOUT 30 YEARS,
  S/O PRASANNA KUMAR,
  GORAVANAHALLI, KASABA HOBLI,
  KORATAGERE TALUK,
  TUMKUR DISTRICT,
  KARNATAKA-572129.
                                       ... PETITIONERS
  (BY SRI NIKHILESH RAO M, ADVOCATE)

  AND

  T R SREERANGAIAH
  AGED ABOUT 78 YEARS,
  S/O B.RANGANNA
  THEETHA VILLAGE, KOLALA HOBLI
                                                  W.P.No.17185/2018
                               -2-




KORATAGERE TALUK,
TUMKUR DISTRICT
KARNATAKA-572129.
                                              ... RESPONDENT

(BY SRI AKSHAY B.M., ADVOCATE FOR
SRI B K MANJUNATH, ADVOCATE)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 7.2.2018 PASSED BY THE LD. PRL.
SR. CIVIL JUDGE AND JMFC, MADHUGIRI IN CASE BEARING
NO.O.S.39/2015 AT ANNEX-A ON THE APPLICATION FILED BY
THE RESPONDENT UNDER ORDER 26 RULE 9 AND
CONSEQUENTLY DISMISS THE SAME WITH COSTS AND ETC.

     THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                            ORDER

The defendants in a suit for perpetual injunction, as filed by the respondent/plaintiff in the Court of Principal Senior Civil Judge and JMFC, Madhugiri (O.S.No.39/2015), have preferred this writ petition on being aggrieved of the order dated 07.02.2018 in the said suit, whereby the Trial Court, has issued commission for local inspection while observing as under:

"5. Counsel for the plaintiff has filed I.A.No.II Under Order XXVI Rule 9 of CPC seeking appointment of commissioner to locate encroached area. Appointment of commissioner for finding out the exact position of the suit property i.e. item No.2 cannot be refused merely because the evidence of the party has not W.P.No.17185/2018 -3- commenced. The object of local investigation under Rule 9 is to assist the Court by placing a copy of report of such local inspection. In this case on hand, plaintiff wants to locate the encroached area towards southern side of the suit schedule property. Hence, in the circumstances of the case, I pass the following:

:ORDER:

I.A.No.II filed by the plaintiff under Order XXVI Rule 9 of CPC is hereby allowed.

ADLR/Taluka Surveyor is appointed as commissioner to measure and locate the suit schedule property and the encroached property i.e. item No.2.

Commissioner fee is fixed at Rs.1,500/-.

Issue commissioner warrant after depositing the fee and after furnishing memo of instructions.

Await report 22.02.2018."

Having heard learned counsel for the parties and having perused the material placed on record, this Court finds it difficult to approve the approach of the Trial Court where a commission for local inspection has been issued even before the evidence of parties and without the Court finding that the matter in issue required elucidation by way of a Commissioner's report.

Counsel for the petitioner has referred to the decisions in the case of M.S.Pushpalatha and Ors. Vs. T.Ramaswamy Reddy and Ors.: W.P.No.58158/2014 (GM- W.P.No.17185/2018 -4- CPC) decided on 10.02.2015 and Sujith Rosario vs. Edward Rosario and Ors.: W.P.No.40105/2017 (GM-CPC) decided on 16.10.2017 wherein this Court has reaffirmed the settled position of law that it is for the parties to establish their claim by adducing oral and documentary evidence; and a commission cannot be issued for collecting the evidence for any of the parties.

Though the order impugned, as passed by the Trial Court in the present case, is difficult to be approved but, on the facts and in the circumstances of this case and for expeditious proceedings, it appears appropriate to provide that the commission may submit its report in a sealed cover before the Trial Court, that may be kept on record, but the operation of the order impugned and consideration of the report made thereunder shall remain in abeyance at present. After evidence of the parties, the Trial Court may re-examine the question of issuance of commission, and if the Trial Court finds it expedient, it may take into consideration the Commissioner's report in accordance with law and subject to the objections of the parties, if any.

W.P.No.17185/2018

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With the aforesaid modification of the order impugned, this petition stands disposed of. No costs.

Sd/-

CHIEF JUSTICE VMB/BSR

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