Ramanjinamma vs Venkatamma on 28 January, 2021

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Karnataka High Court

Ramanjinamma vs Venkatamma on 28 January, 2021

Bench: Krishna S.Dixit

                              1

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 28TH DAY OF JANUARY, 2021

                         BEFORE

         THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO.1558 OF 2021 (GM-CPC)

BETWEEN:
1 . RAMANJINAMMA,
W/O. M.C. NAGARAJU,
AGED ABOUT 45 YEARS,
2 . M.C. NAGARAJU,
S/O. LATE CHINAGAPPA,
AGED ABOUT 54 YEARS,
BOTH RESIDING AT,
MEDARAHATTI, MADHUGIRI TOWN,
TUMAKURU DISTRICT - 572 132.
                                           ...PETITIONERS
(BY SRI. VIVEK.S, ADVOCATE)

AND:

1 . VENKATAMMA,
W/O. HANUMANTHAPPA,
AGED ABOUT 75 YEARS,
2 . DURGADEVI,
D/O. HANUMANTHAPPA,
BOTH RESIDING AT
DARGAH ROAD, MADHUGIRI,
TUMAKURU DISTRICT - 572 132.
                                          ...RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH AND SET
ASIDE THE IMPUGNED ORDER DATED 17 NOVEMBER 2020
PASSED ON I.A.NO.X BY THE HONBLE ADDITIONAL CIVIL JUDGE
(JUNIOR   DIVISION)   AND    JMFC   AT   MADHUGIRI   IN
O.S.NO.408/2011 PRODUCED AS ANNEXURE-A TO THE INSTANT
PETITION AND ALLOW I.A.NO.X FILED BY THE PETITIONER.
                                   2

     THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:

                               ORDER

Petitioners being the plaintiffs in a declaration suit in O.S.No.408/2011 are knocking at the doors of the Writ Court for assailing the order dated 17.11.2020 a copy whereof is at Annexure-A whereby the learned Additional Civil Judge, Madhugiri, having rejected their application in I.A.No.10 filed under Section 151 of CPC, 1908 with a cost of Rs.200/-.

2. Having heard the learned counsel for the petitioners and having perused the petition papers, this Court is not inclined to grant indulgence in the matter since it substantially agrees with the reasoning contained in para 16 of the impugned order which states that the petitioners was given abundant opportunity to file objections to the Commissioner Report and having not availed such opportunity, he cannot be heard to complain of lack of opportunity and violation of principles of natural justice.

3. The second contention vehemently urged by learned counsel for the petitioners that the order whereby the Commissioner was appointed by the Court below did not 3 authorize delegation of Commission powers to some other persons and therefore, the report submitted by the delegate is bad vide deligatus non protest protestas deligare, does not come to his aid since it is not a Thumb Rule, especially when the Commission work has been accomplished by the delegate who is none other than a Junior Engineer and in the opinion of this Court, he has competence to do commission work; secondly, this Maxim lays down a general principle and therefore, not in the absence of proven prejudice; the reliance placed by the petitioners on Shamanna Setty Vs. B.L. Channegowda, ILR 2006 KAR 3588 does not come much to his aid since this aspect has not been discussed.

In the above circumstances, this writ petition being devoid of merits is liable to be rejected and accordingly it is, in limine; however, it is open to the petitioners to take up all contentions in the course of argument which otherwise they could have taken by way of objections to the Commissioner's Report.

Sd/-

JUDGE DS

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