Karnataka High Court
Shri J Sridhara vs Shri J Vijayakumar on 19 November, 2021
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19H DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO. 10614/2019 (GM/CPC)
BETWEEN :
SHRI.J.SRIDHARA
S/O LATE P JANAKIRAMA CHETTY,
RESIDING AT HEBBASURU VILLAGE,
C.P.C GARDEN,
CHAMARAJANAGAR - 571 342.
... PETITIONER
(BY SMT.SUMATHI.S, ADVOCATE)
AND :
1. SHRI J. VIJAYAKUMAR
S/O LATE P JANAKIRAMA CHETTY,
AGED ABOUT 63 YEARS,
2. SMT. SUMA
W/O J VIJAYAKUMAR,
AGED ABOUT 63 YEARS,
BOTH ARE RESIDING AT
HEBBASURU VILLAGE, CPC GARDEN,
CHAMARAJANAGAR TALUK
AND DISTRICT - 571 342.
3. SMT. MANJULA
D/O SWAMY,
AGED ABOUT 55 YEARS
W/O MAHADEVASWAMY,
BUSINESSMAN IN BANANA AND PLANTAINS,
2
HEBBASURU VILLAGE, CPC GARDEN,
CHAMARAJANAGAR
TALUK AND DISTRICT - 571 342.
... RESPONDENTS
( R1 TO R3 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 11.2.2019 IN O.S.NO.320/2011 ON
THE FILE OF PRL. CIVIL JDUGE AND JMFC,
CHAMARAJANAGAR AND TO QUASH THE ORDER DATED
28.2.2019 PASSED ON I.A.NO.13 U/S 151 OF CPC FILED
BY THE PLAINTIFF FOR RECALL OF ORDER DATED
11.2.2019 IN O.S.NO.320/2011 ON THE FILE OF THE PRL.,
CIVIL JUDGE AND JMFC, CHAMARAJANAGAR, VIDE
ANNEXURE-G, BY ALLOWING THIS PETITION; DIRECT THE
PRL. CIVIL JDUGE AND JMFC, CHAMARAJANAGAR IN
O.S.NO.320/2011 TO RE-ISSUE COMMISSIONER
WARRANT TO THE DEPUTY DIRECTOR OF LAND RECORDS
(DDLR) CHAMARAJANAGAR.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner, who is the plaintiff in O.S.No.302/2011 on the file of the Principal Civil Judge and JMFC, Chamarajanagar (for short, 'the civil Court'), has impugned the civil Court's orders dated 11.2.2019 and 28.2.2019. The civil Court by the first order dated 3 11.2.2019 has listed the suit for arguments recording that both the petitioner and the respondents are not interested in cooperating with the Commissioner in executing the Commissioner's warrant, and by the next order dated 28.2.2019, the civil Court has rejected the petitioner's application under Section 151 CPC for recall of this order dated 12.2.2021 reiterating its opinion that the parties are given multiple opportunities to cooperate with the execution of the Commissioner's Warrant but neither have taken any action, and holding that because of the parties' conduct the order dated 12.2.2019 cannot be recalled. The civil Court has also opined that in the circumstances it had not erred in listing the suit for arguments.
2. It is seen that at the instance of the petitioner, a Court Commissioner is appointed who has filed his report not once but twice and both these reports are rejected by the civil Court. Later, the 4 Deputy Director of Land Records is appointed as the Court Commissioner and he has drawn mahazar recording that he could not execute the warrant to measure the subject property because of the standing sugarcane crops and he can execute the warrant once standing crops are harvested. This report is dated 30.1.2019 and is placed before the Court on the same day. On the very next date of hearing viz., on 11.2.2019, the civil Court by the first impugned order dated 11.2.2019 has listed the suit for arguments recording the parties' non-cooperation.
3. It is now canvassed by the learned counsel for the petitioner that the Deputy Director of Land Records did not execute the Commissioner's warrant only because he was of the opinion that with the standing crops in the subject land, he cannot execute the warrant, and the petitioner could not have harvested the standing sugarcane crop immediately. 5 The learned counsel submits that the petitioner was definitely not negligent or casual.
4. Given the proximity of the dates between the Deputy Director of Land Record's Report dated 30.1.2019 and the first of the impugned Order, and the fact that the parties could not have been reasonably expected to harvest the standing crops forthwith, this Court is of the considered opinion that the petitioner and the respondents must be given another opportunity to enable the Commissioner to execute the warrant to facilitate adjudication on the real controversy; the purpose for which the Court Commissioner is appointed at the first instance.
Therefore, the writ petition is allowed and the civil Court's both the impugned orders dated 28.2.2019 and 11.2.2019 in O.S.No.320/2011 are invalidated and the civil Court is called upon to reissue Commissioner's 6 Warrant to the jurisdictional Deputy Director of Land Records in terms of its earlier order.
SD/-
JUDGE nv