Mr Robin Rego vs Mr Geoffrey Rego on 14 August, 2012

[Cites 4, Cited by 0]

Karnataka High Court

Mr Robin Rego vs Mr Geoffrey Rego on 14 August, 2012

Bench: Ravi Malimath

                                1




       IN THE HIGH COURT OF KARNATAKA AT BANGALORE

           DATED THIS THE 14TH DAY OF AUGUST 2012

                             BEFORE

           THE HON'BLE MR. JUSTICE RAVI MALIMATH

       WRIT PETITION NO.27924 OF 2012 [GM-CPC]

Between:

Mr. Robin Rego
S/o late C.G. Rego
Aged about 55 years
C/o Fort English
Medium School
Bellary - 583 102
                                                       ...Petitioner
(by Sri L.M. Ramaiah Gowda, Advocate)

And:

   1. Mr. Geoffrey Rego
      S/o Late C.G. Rego
      Aged about 61 years
      C/o Mr. D.C. Rego
      Residing at No.23,
      Rest House Crescent
      Bangalore - 560 001

   2. The Commissioenr
      Bruhath Bangalore Mahanagara Palike
      Bangalore
                                                    ...Respondents
(by)

      This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the order dated 13.7.12
                                   2




passed by the Court of IX Additional City Civil & Sessions Judge,
Bangalore in Suit OS. No.6354 of 2008 vide Annexure-H ad allow
the petition; and etc.

      This petition coming on for orders this day, the Court made
the following:

                              ORDER

Petitioner filed a suit seeking for a decree of permanent injunction, mandatory injunction and consequential reliefs. During the pendency of the suit he filed an application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure in the following terms:

"That for the reasons stated in the accompanying affidavit, the plaintiff humbly pray that this Hon'ble Court be pleased to appoint a Court Commissioner for the purpose of elucidating the dispute involved in the suit schedule property, in the interest of justice and equity."

2. The Trial Court, while considering the plea, rejected the same. Hence the present petition.

3. The learned counsel for the petitioner submits that the appointment of a Court Commissioner is necessary for the final 3 adjudication of the suit and if the Court Commissioner is not appointed, the petitioner may fail in establishing his suit.

4. On hearing the learned counsel for the petitioner and examining the impugned order, I do not find any error committed by the Trial Court which calls for interference. The Application has been filed for "elucidating the dispute involved in the suit schedule property". The Court commissioner cannot be appointed for the purpose of elucidating the dispute. Whether there exists a dispute or not, the Court Commissioner cannot say anything with regard to the same. The learned counsel for the petitioner contends the counsel intended to file an application purporting to establish the encroachment towards the 'A' schedule property. That was the purport and intent of the application. However, what has been pleaded is not so. Even otherwise, the Trial court, while considering the application on merits and in terms of the contentions and also the evidence placed by the parties, was of the view that the material on record is sufficient to decide the dispute between the parties and that there is no need for appointment of a Court Commissioner. 4 The Trial Court has opined that the appointment of Court Commissioner is unnecessary. It would be out of context to appoint the Court Commissioner when the Court finds that the appointment of Court Commissioner is unnecessary for the disposal of the suit. Hence, I do not find any ground to interfere with the impugned order. The petition being devoid of merits is accordingly dismissed.

Sd/-

JUDGE lnn

Unlock Advanced Research with PRISMAI

Karnataka High Court