Karnataka High Court
Sri Sopanarao Survey S/O Late Tukaram vs Sri Ganapati S/O Shamburao on 7 August, 2008
Bench: Deepak Verma, A.S.Bopanna
1 I!' THE HIGH COURT OF KARNATAKA AT BANGALORE DATED TI-I18 THE Tm DAY OF AUGUST 2008 _ PRESENT 'mm nownnn MR. nmmx VERMA, Acrme ¢;~iiiéia5 AND THE HOWBLE MR. JU8flGE " :; ' wm-r APFEAL no.1o;;g_or dads m.g,cm%% I V L nmwmn: Sxisopanarao Survey, S/o. Late Tukazam, Aged about 63 Years, Rjo. Ganigara Street, " Anasrxnnn. _ ' - ' .. APPELLAHT. (By Sri. Tia. Agiséocate with Sri. Vccna C.G_. Acizy i%J_r" " Sri. B.V.Vidyu}ai11a,.Adv.) AND: ,. «E 'V ' iaati' ____ __ ' ":"£~,lj9';v.VSh:s Iiz1xb'tI.1'a.o, -(Agc<'i. .<}:1hgut'54 Years. S] o."-.Ga'JJLapati, Aged about 33 Years. 3.1' V. A' ' S;nt. Sulochana, ' »W5/0 Ganapati, Aged about 58 Years. T A3} the respondents are
R] o Rangegovwda Street, ARASIKERE TOWN. .. RESPOKDEHTS. 'fi'**** "F5 This Writ Appeal filed under Section 4 of the High Court Act praying to set aside the order in W.P.No.2341/2008 (GM-CPC) dated 26.02.2008. i L" 3 i This Writ Appeal coming on foijC)r'dei's.~1_.,' CHIEF JUSTICE, delivered the foilowin : 1 ' JUDGHE'-ex S1i.'I'.R. Subbamia, learned seiiior it emiiuseii' Lathe on the question of -- T d I V .2. Appellant is db}! by the learned Single Jzidge._oI1.Aé6.fl3i;2{)08:'%._ he W.P.No.2341/2008, which was purportedly; £26 and 227 of the Constitution of India. aggrieved by an interlocutory order dated by the Civil Judge (Sr.Dn.), Axasikere, in the the application, I.A.II filed by the it tespoxidentzs' under Order 26, Rule 9 of the Code of Civil " ~P@ .. durfmfor appointment of an Engineer of P-W-D» Arasikem, as A (§Cm1:..(5ommissioner to measure the suit property and also the belonging to the appellant herein. r® 3
3. According to us, against the dismissal of the appe1}a;ut's Writ Petition by the learned Single Judge, an appeal under 4 of the Karnataka High Court Act would not be the light of the opinion expressed by the larger reported in Int 2005 KARNATAKA "
Vs. Mahaboob Shahi Kulburga' mmse ano7tk5ee]: am; it has been held that writ appeal oegly when the learned Single Judge has e§:emisee'V_ihe jeiiséiicfion under Article 2260f Itsiiiafand not against such order, where exercised the power conferred on 111111.' undeieagecaé' Constitution ofindia. _ V" .. for the aPP611ant strenuously that perusal of the Writ petition filed by the appefiget sh.ofiasTV.that it was a composite petifion under Articles ~ and of the Constitufion of india.
Nodoubt it is true that the petition has been filed by the T by mentionixzg both Arficles 226 and 227 of the "Constitution of India, but nomenclature itself would not be a "BS decisive factor. What is to be seen is the text of the 'petition to 003338 to the conclusion whether it could be one 226 of the Constitution of India or exclusively the Constitution of India or it could :;'§ii11ibc..V te;mect':aaV petition under Articles 226 and of 'oi; it is a matter of common kI1ow}edfge.V:::that is filed in the High Court, if in especitficviploxjrision of law under which it would be ngentioncd, instead it is a common filed under Articles 226 and £32? fndia, but ali such petitions cannot Atreatcdi oefone finder both the provisions of law.
5. Looldzigto tn¢ ;;.atu;is«s§f the relief claimed by the appellant in «-'"t]V1_e petition, iii'o!.1.i:«'considemd opinion that it can only be under Article 227 of the Constitution of India. The'fnc'£s also A ' ed so that it could not have been a petition % 'filed uniefimiicic 225 ofthe Constitution of india. 'Ff 22 senior counsel for the appellant then placed before $1.; judgment of the Supreme Court in the case of Kishori La! Vs. Ofilcer, District Land Development Bank & Ora. [2006 AIRBCW 6126] and has pressed into sexvice Fare: 14, which news as thus:
":4. The learned Single Judge of the High Court, in our opinion, error in interfering with the findi1;ge--.o_f facij 2 V arrived at by the Board l?e*a*er:1_1e.-:' L. Division Bench of the "'i~Iig}i "
wrongly dismissed the*-LPA {without that an appeal would writ petition meg: Areplesh 2'26 am 227 of the C<)Il".*4Z'~3fi"'£',I13Ti'(':-I__1 I4ii§ii_a:ae_was held by this im' arayan Nihaiohand Waghajibhai me. [(1Q93}"Supp. 1 sec 11]"
8. Even the said judgxnexzt, we are of the 1"/epi11ion the petition which was filed by the of which this writ appeal arises can only be h ueatedes under AI't1c' le 22'? of the Constitution of India.
-. the tiecision cited by the learned senior counsel is totally «..oiiV'_aVeh;.E€'erent set of circumstances, Whereas the Larger Bench of while considering this aspect has infect referred to a judge decision of the Hoxfble Supreme Court in the case of 723 Badhana Lodh Vs. National Insurance c.o., Lttt.
930) which is akin to the situation involved in Thus no interference is called. On hereby dismfiscd as not AGV.