Karnataka High Court
Moinuddin Patel S/Oladle Patel vs Mustafa Khan S/O Subhankhan on 2 August, 2013
Author: Mohan M Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
ND
DATED THIS THE 2 DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
WRIT PETITION NOS.102442 & 102486/2013 (GM-CPC)
BETWEEN:
Moinuddin Patel S/o Ladle Patel,
Age: 76 Years, Occ: Business,
R/o: Bhendi Bazaar, Shahapur,
Tq: Chittapur, Dist: Gulbarga.
...Petitioner
(By Sri Veeresh.B.Patil, Advocate)
AND:
Mustafa Khan S/o Subban Khan,
Age: 61 Years, Occ: Business,
R/o: Bhendi Bazaar, Shahapur,
Tq: Chittapur, Dist: Gulbarga-585103.
... Respondent
These Writ Petitions are filed under Articles 226 &
227 of the Constitution of India, praying to issue a writ
of certiorari, whereby quashing the impugned order
2
dated 18.6.2013 in R.A. No. 56/2011 passed by the
Lower Appellate Court as at Annexure-F to the writ
petition by the Civil Judge (Sr.Dn) at Chittapur.
These Writ Petitions coming on for preliminary
hearing this day, the Court made the following:
ORDER
The order on I.A.Nos.5 and 6 passed by the Senior Civil Judge, Chittapur in R.A.No.56/2011 is called in question in these writ petitions.
2. I.A.No.5 was filed under Order 41 Rule 27 read with Section 151 of Code of Civil Procedure seeking permission of the Appellate Court to examine the Court Commissioner who was appointed by the Trial Court. I.A.No.6 was filed under Section 12 of the Karnataka Court Fees Act, requesting the Appellate Court to direct the plaintiff to make valuation of the suit property and 3 pay the Court fee thereon properly. Both the applications are rightly rejected by the Court below.
3. The records reveal that the respondent herein filed a suit for possession in O.S.No.28/2008 which came to be decreed. The petitioner herein filed R.A.No.56/2011. Though the petitioner had got ample opportunity before the Trial Court to raise the question relating to the sufficiency of Court fees and to seek for examination/cross-examination of the Court Commissioner, the petitioner slept over the matter. Having suffered the decree, it is not open for the petitioner to raise the question relating to Court fee before the Appellate Court. So also, it is not open for the petitioner to seek permission to cross-examine the Court Commissioner. The very fact that the petitioner did not raise any objection with regard to 4 Commissioner's report clearly reveals that he has accepted the Commissioner's report.
Hence, no interference is called for. Petitions fail and the same stand dismissed.
Sd/-
JUDGE swk