Karnataka High Court
Sri.Syed Pyaru vs Noor Ahmmed on 7 July, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.6877 OF 2022 (GM-CPC)
BETWEEN:
1. SRI.SYED PYARU
S/O ABDUL JABBAR
AGED ABOUT 62 YEARS
R/AT NEAR KANNADA PRIMARY SCHOOL
PEDDAPALLI MAIN ROAD
OORGUAMPET, OORGUAMPET POST
K G F, KOLAR DISTRICT
PIN-563 121
REPRESENTED BY G P A HOLDER
RAHMATHULLA S P
2. SRI M VENKATESHALU
S/O MUNISWAMY
AGED ABOUT 70 YEARS
RESIDING AT NO.426
SUBRAMANYASWAMY TEMPLE STREET
OORGUAMPET, K G F
KOLAR DISTRICT
PIN-563121
...PETITIONERS
(BY SRI.VINOD REDDY, ADVOCATE FOR
SRI.GURUVA REDDY N, ADVOCATE)
AND
2
1. NOOR AHMMED
AGED ABOUT 55 YEARS
S/O PYAREJAN
RESIDING AT
NEAR KANNADA PRIMARY SCHOOL
PEDDAPALLI MAIN ROAD
OORGUAMPET, K G F
PIN-563121
2. RIYAZUNISSA
AGED ABOUT 69 YEARS
W/O FIROZ PASHA
D/O LATE PYAREJAN
3. JIMUNNISSA
AGED ABOUT 61 YEARS
W/O FAYAZ AHAMED
D/O LATE PYAREJAN
4. MUSHTAQ AHMED
AGED ABOUT 57 YEARS
S/O LATE PYAREJAN
5. MUKTHAR AHMED
AGED ABOUT 55 YEARS
S/O LATE PYAREJAN
6. KHADEER AHMED
AGED ABOUT 50 YEARS
S/O LATE PYAREJAN
7. RESHMA
AGED ABOUT 48 YEARS
D/O LATE PYAREJAN
8. RAFEEQ AHMED
AGED ABOUT 47 YEARS
S/O LATE PYAREJAN
3
RESPONDENT NOS.2 TO 8 ARE
ALL RESIDING NEAR KANNADA PRIMARY SCHOOL
PEDDAPALLI MAIN ROAD
OORGUAMPET, K.G.F
PIN-563121
9. NAYEEMUNISSA
AGED ABOUT 53 YEARS
W/O MUSHEER AHAMED
D/O LATE PYAREJAN
R/AT JALEEL LAYOUT
ROBERTSONPET
K G F, PIN-563 122
.....RESPONDENTS
(BY SRI.NEERAJA KARANTH, ADVOCATE FOR C/R.1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 07.03.2022 PASSED BY THE COURT OF
PRL. CIVIL JUDGE AND ADDL. JMFC AT K.G.F ON
I.A.NO.21 IN O.S.NO.123/2011 VIDE ANNEXURE-E AND
ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the petitioners-defendants feeling aggrieved by the order of the learned Judge passed on an application filed in I.A.No.21 seeking appointment of a Court 4 Commissioner to measure the suit schedule properties. The said application is allowed.
2. The respondent - plaintiff has instituted a suit for declaration and for mandatory injunction by specifically alleging that there is an illegal encroachment made by the present petitioner - defendant. The respondents - plaintiffs in support of their contention have lead in oral and documentary evidence. The petitioners - defendants have also lead in rebuttal evidence to substantiate their claim. After conclusion of trial, the respondent - plaintiff filed an application seeking local inspection of the suit schedule properties to ascertain the encroachment. The said application is allowed by the learned Judge. Learned Judge while allowing the said application was of the view that the oral and documentary evidence is not sufficient to determine the actual controversy between the parties. Learned Judge, while allowing 5 for local inspection, was of the view that the local inspection in the present case on hand is very much necessary. Therefore, the learned Judge has proceeded to allow the application.
3. If the learned Judge, who has recorded evidence, has taken a view that the present lis cannot be effectively adjudicated without assistance of the local inspection of the suit schedule properties, then this Court is of the view that the said view arrived at by the learned Judge cannot be interfered with under Article 227 of the Constitution of India. Because of its peculiar character and nature, if local inspection becomes absolutely necessary, more particularly when a relief of mandatory injunction is sought, the learned Judge has rightly taken a view to secure report from the Commissioner. Therefore, I do not find any error in the order under challenge. For the foregoing reasons, I proceed to pass the following; 6
ORDER The writ petition is dismissed.
Sd/-
JUDGE NBM