Karnataka High Court
Smt. Anitha Dev vs Smt. Susheela Bai on 6 August, 2018
Equivalent citations: AIRONLINE 2018 KAR 922
Author: Vineet Kothari
Bench: Vineet Kothari
1/9
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 6th DAY OF AUGUST 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.2098/2017 (GM-CPC)
BETWEEN:
Smt. Anitha Dev
W/o late Dr. Ahamindra Dev
Aged about 63 years
Residing at No.14/87
Rathnavilas Road
Basavanagudi, Bangalore-560004.
...Petitioner
(By Mr. K.P. Asokumar, Advocate)
AND:
1. Smt. Susheela Bai
W/o Sri. Bheemraj H. Jain
Aged about 50 years
2nd Floor of No.54
Shankarapark
Shankarapuram, Bangalore-560004.
2. Bruhat Bangalore Mahanagara Palike
Hudson Circle, Bangalore
By its Commissioner.
...Respondents
(By Mr. Abhinay Y.T. Advocate for R1
R2 served & unrepresented)
Date of Order 06-08-2018 W.P.No.2098/2017
Smt. Anitha Dev Vs. Smt. Susheela Bai & Anr.
2/9
This Writ Petition is filed under Article 227 of the
Constitution of India praying to issue a writ of certiorari or
any other appropriate writ, order or direction and quash the
order dated 3/1/2017 made by XL Additional City Civil and
Sessions Judge, Bangalore, CCH 41, dismissing I.A.X filed by
appointment of Commissioner in O.S. No.3391/2014
(Annexure-F) & etc.
This Writ Petition coming on for Preliminary Hearing in
'B' Group this day, the Court made the following:-
ORDER
Mr. K.P. Asokumar, Adv. for Petitioner Mr. Abhinay Y.T. Adv. for R1
1. The plaintiff- Smt. Anitha Dev, W/o. late Dr. Ahamindra Dev has filed this Writ Petition under Article 227 of the Constitution of India, aggrieved by the Order dated 03/01/2017 passed by the learned Trial Court in O.S.No.3391/2014 (Smt. Anitha Dev Vs. Smt. Susheela Bai and another).
2. By the impugned Order, the learned Trial Court has rejected the Application filed by the plaintiff Date of Order 06-08-2018 W.P.No.2098/2017 Smt. Anitha Dev Vs. Smt. Susheela Bai & Anr. 3/9 under Order 26 Rule 9 Read with Section 151 of the Civil Procedure Code for Appointment of a Commissioner for ascertaining the actual position of the Site construction which, according to the plaintiff, was illegally being undertaken by the first Defendant/Respondent in the present Injunction Suit.
The relevant reasons given by the learned Trial Court in the impugned Order dated 03/01/2017 are quoted below for ready reference:-
"In the instant case, the plaintiff has filed the suit against the defendants for declaration to declare that she has easementary right of light and air from the 'B' schedule property to her 'A' schedule property, Mandatory Injunction for demolition of the unauthorized construction put up in the mandatory setback area on the southern, northern and eastern side of schedule 'B' property and for permanent injunction restraining the 1st defendant from putting up construction on schedule 'B' property in violation of approved building plan and Date of Order 06-08-2018 W.P.No.2098/2017 Smt. Anitha Dev Vs. Smt. Susheela Bai & Anr.4/9
byelaws in setback areas and also to direct the 2nd defendant BBMP to remove the unauthorized construction made by the 1st defendant in the setback area in violation of approved building plan and Building Byelaws on schedule 'B' property and see that further construction is put up thereon, strictly in accordance with approved building plan and costs, etc. The suit of the plaintiff is resisted by the 1st defendant and filed written statement denying the material averments/allegations of the plaint and case of the plaintiff. On the pleadings of both parties, issues have been framed. The plaintiff and 1st defendant have adduced their evidence and closed their respective sides. Thereafter, the matter was posted for arguments. At this stage, the plaintiff has filed the present application praying to appoint a Commissioner to find out whether schedule 'B' property is being constructed in accordance with approved building plan and if not what are the violations made by the 1st defendant in construction of schedule 'B' Date of Order 06-08-2018 W.P.No.2098/2017 Smt. Anitha Dev Vs. Smt. Susheela Bai & Anr.5/9
property an to report the same to the Court. Already, the contesting parties have adduced evidence in support of their case. The parties have to prove their case by adducing their evidence. On the other hand, the plaintiff has not shown reasonable grounds that the available evidence on record is insufficient for effective adjudication of the matter in controversy. Though the plaintiff contended regarding 1st defendant seeking for appointment of a Court Commissioner, as such she would stand to gain by the appointment of the Commissioner now etc., but she herself got marked certified copy of the said application filed under Or.XXVI Rule 9 r/w Sec.151 of CPC at Ex.P.12 wherein the 1st defendant herein sought appointment of Court Commissioner for local investigation to insect plaint schedule 'A' & 'B' properties and report about violation if any in the said properties, whereas, the instant application filed to appoint a Commissioner in respect of only 'B' schedule property, as such, said contention of the plaintiff, is untenable. Considering the materials on record, the Date of Order 06-08-2018 W.P.No.2098/2017 Smt. Anitha Dev Vs. Smt. Susheela Bai & Anr.6/9
plaintiff has not shown reasonable grounds to appoint a Commissioner as prayed, accordingly, I answer Point No.1 in the negative."
3. The learned counsel for the plaintiff - petitioner relying upon the decision of the learned Single Judge of this Court in the case of Smt. Rathnamma Vs. Ademma (2010) 3 Kant LJ 130 submits that where the parties have not placed sufficient material on record to show that the evidence available on record is sufficient for effective adjudication of the case, then in such a circumstance, the Court ought to have appointed a Commissioner to ascertain the correct factual position.
4. In the said Judgment, the Court had upheld the Order of the learned Trial Court rejecting the I.A.No.9 for Appointment of a Commissioner under Order 26 Rule 9 CPC.
Date of Order 06-08-2018 W.P.No.2098/2017 Smt. Anitha Dev Vs. Smt. Susheela Bai & Anr. 7/9
5. The learned counsel for the first Respondent Defendant has supported the impugned Order.
6. He submits that the said Application has been filed after the evidence of both the sides was completed by the learned Trial Court.
7. In his rejoinder, the learned counsel for the petitioner has also urged before the Court that after closure of the evidence, the matter was not even posted for final arguments in the order sheet, yet, in the impugned Order, the learned Trial Court has so stated.
8. Having heard the learned counsels for the parties, this Court is satisfied that there is no error in the impugned Order requiring interference by this Court under Article 227 of the Constitution of India. It depends upon the facts and circumstances of each case and in the discretion of the learned Trial Court to appoint a Commissioner, if the Trial Court feels any Date of Order 06-08-2018 W.P.No.2098/2017 Smt. Anitha Dev Vs. Smt. Susheela Bai & Anr. 8/9 need of such clarification or assistance by an independent Commissioner. Otherwise, the parties have to establish their respective case on the basis of the evidence led by them and on the appreciation of which, the learned Trial Court is expected to record the findings and decide the Suit in question. Such discretionary Orders do not require any interference by this Court under Article 227 of the Constitution of India.
9. The judgment relied upon by the learned counsel for the petitioner plaintiff in which the Application rejecting the request for Appointment of the Commissioner was upheld by this Court, the observation that if there is no sufficient material, the Trial Court can appoint such Commissioner, does not help the present petitioner in any case, because, the evidence in the present case has been recorded by the learned Trial Court and there is no finding that there Date of Order 06-08-2018 W.P.No.2098/2017 Smt. Anitha Dev Vs. Smt. Susheela Bai & Anr. 9/9 was no sufficient material or evidence or record to decide the Suit.
10. In these circumstances, there is no need of any interference in the impugned Order of the learned Trial Court.
11. The present writ petition is accordingly dismissed being devoid of merit. No costs.
Sd/-
JUDGE BMV*