Karnataka High Court
M G Shankar Narayana vs N.Sarojamma on 6 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2023:KHC:19393
WP No. 14270 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 14270 OF 2021 (GM-CPC)
BETWEEN:
1. M G SHANKAR NARAYANA
S/O LATE GOPALAPPA
AGED 65 YEARS,
2. SHIVA BABU
S/O M.G.SHANKAR NARAYANA
AGED 38 YEARS,
3. RATHNAMMA
W/O M.G.SHANKAR NARAYANA
AGED 60 YEARS,
PETITIONERS 1 TO 3 R/AT NO.717,
OLD SWARANAKUPPAM,
ROBERTSONPET,
K.G.F.-563 122.
Digitally signed
by CHANDANA 4. MANJULA
BM W/O BHASKAR
AGED 42 YEARS,
Location: High
Court of R/AT KUMARI K.V., KUMARI BUILDING,
Karnataka OLD SWARANAKUPPAM
ROBERTSONPET, K.G.F.-563 122.
...PETITIONERS
(BY SRI. SUJAYEENDRA SRIDHAR, ADVOCATE)
AND:
1. N.SAROJAMMA
W/O LATE N. NARAYANAPPA
AGED 90 YEARS,
R/AT NO.716, SRINILAYA, SWARANAKUPPAM,
-2-
NC: 2023:KHC:19393
WP No. 14270 of 2021
ROBERTSONPET, K.G.F. KOLAR DISTRICT-563 122.
2. N.MEENAKSHI
W/O K.R.VENKATACHALAPATHI
D/O LATE N.NARAYANAPPA
AGED ABOUT 70 YEARS,
R/AT RAJARAJESHWARI NAGAR,
BANGALORE-560 098.
3. N.DHANALAKSHMI
W/O R.A.KRISHNAKUMAR
D/O LATE N.NARAYANAPPA
AGED 67 YEARS,
R/AT WILSON GARDEN,
BANGALORE-560 027.
4. N.NARASIMHAMURTHY
S/O LATE N.NARAYANAPPA
AGED 65 YEARS,
5. N.VENKATESH
S/O LATE N.NARAYANAPPA
AGED 63 YEARS,
R-4 AND 5 ARE R/AT NO.716, SRINILAYA,
SWARANAKUPPAM, ROBERTSONPET, K.G.F.
KOLAR DISTRICT-563 122.
...RESPONDENTS
(BY SRI.M.B. CHANDRA CHOODA, ADVOCATE FOR
R-2 TO R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO ALLOW THE ABOVE
WRIT PETITION AND QUASH ORDER DATED 20.07.2021 OF THE
HONBLE I-ADDITIONAL CIVIL JUDGE AND JMFC AT KGF IN
O.S.NO.80/2013 AT ANNEXURE-A IN REJECTING IA NO.11 FILED BY
THE PETITIONERS-DEFENDANTS UNDER ORDER 26 RULE 9 R/W
SECTION 151 OF CODE OF CIVIL PROCEDURE, 1908, THEREBY
REFUSING TO APPOINT A COURT COMMISSIONER TO INSPECT
AND MEASURE THE SUIT SCHEDULE PROPERTY AND WRITTEN
STATEMENT SCHEDULE PROPERTY AND ETC.,
THIS PETITION, COMING ON FOR PRILIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
-3-
NC: 2023:KHC:19393
WP No. 14270 of 2021
ORDER
1. This petition is directed against the impugned order dated 20.07.2021 passed on I.A.No.11 in O.S.No.80/2013 by the I Additional City Civil Judge and JMFC, KGF (for short "the Trial Court"), whereby the said application filed by the petitioners- defendants under Order 26 Rule 9 CPC for appointment of Court Commissioner to conduct local inspection of the suit schedule property and the written statement/counter claim schedule property was dismissed by the Trial Court.
2. Heard learned counsel for the petitioners, learned counsel for respondent Nos.2 to 5 and perused the material on record.
3. The material on record discloses that the respondents- plaintiffs instituted the aforesaid suit for permanent injunction and other reliefs in relation to the plaint 'A' and 'B' schedule properties. The petitioners, who were arrayed as defendants in the suit, filed their written statement not only repudiating the claim of the plaintiff, but also put forth counter claim for declaration and mandatory injunction in respect of the written statement/counter claim 'A', 'B' -4- NC: 2023:KHC:19393 WP No. 14270 of 2021 and 'C' schedule properties to which the respondents have filed rejoinder/reply to the counter claim of the defendants.
4. After completion of evidence, the petitioners- defendants filed the instant application seeking appointment of Court Commissioner to conduct local inspection of both the plaint schedule properties and written statement schedule properties. The said application having been opposed by the respondents, the Trial Court proceeded to pass the impugned order rejecting I.A.No.11 on the ground that appointment of Court Commissioner tantamounts to collection of evidence and the same is impermissible in law. In my considered opinion, the impugned order passed by the Trial Court rejecting I.A.No.11 is not only contrary to the material on record, which indicates that there is a dispute regarding identity, location, encroachment etc., as can be seen from the rival contentions, but the impugned impugned order is also contrary to the well settled principles of law governing appointment of Court Commissioner and the recent judgment of this Court in the case of SHADAKSHARAPPA Vs. KUMARI VIJAYALAXMI - W.P.No.201274/2023 DATED 24.01.2023. Under these circumstances, I am of the considered opinion that the impugned -5- NC: 2023:KHC:19393 WP No. 14270 of 2021 order passed by the trial Court rejecting I.A.No.11 has occasioned failure of justice warranting interference of this Court in the present petition.
5. In the result, I pass the following:
ORDER i. The Writ Petition is allowed.
ii. The impugned order dated 20.07.2021 passed on I.A.No.11 in O.S.No.80/2013 by the I Additional Civil Judge and JMFC, KGF, is hereby set aside and consequently, I.A.No.11 is allowed. iii. Liberty is reserved in favour of the parties to file their respective Memo of Instructions before the Court Commissioner.
iv. The Trial Court is directed to appoint a Court Commissioner and secure report and proceed further in accordance with law.
v. Liberty is also reserved in favour of the parties to file their objections to the Court Commissioner's Report and examine/cross-examine him, if they so desire. -6-
NC: 2023:KHC:19393 WP No. 14270 of 2021 vi. The Trial Court is directed to dispose of the suit as expeditiously as possible and preferably on or before 21.12.2023.
Sd/-
JUDGE BMC