Karnataka High Court
G Padmanabhan vs K Murthy on 3 December, 2018
Author: Alok Aradhe
Bench: Alok Aradhe
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE ALOK ARADHE
WRIT PETITION NO.1791 OF 2017 (GM-CPC)
BETWEEN:
1. G. PADMANABHAN
S/O GOVINDASWAMY
AGED ABOUT 61 YEARS.
2. SMT. MANIMEGALAI
W/O G. PADMANABHAN
AGED ABOUT 49 YEARS.
BOTH ARE RESIDING AT
No.49, ALBERT SQUARE
CHAMPION REEF, K.G.F.-563117.
... PETITIONERS
(BY SRI. S.N.ASWATHANARAYANA, ADV.)
AND:
K. MURTHY
S/O LATE KRISHNAN
RESIDING AT No.206
C-BLOCK, CHAMPION REEF POST
K.G.F.
PRESENTLY RESIDING AT
3RD CROSS, Dr. B.R. AAMBEDKAR NAGAR
OORGAUM POST, K.G.F.-563117.
... RESPONDENT
(BY SRI. RAKSHITHA V.N. ADV. FOR
SRI. K. RAGHAVENDRA RAO, ADV.,)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DTD: 9-12-2016 VIDE ANNEX-J PASSED ON
I.A.NO.32 REJECTING THE APPLICATION FILED UNDER
ORDER 26 RULE 9 CPC SEEKING APPOINTMENT OF CITY
SURVEYOR AS THE COMMISSIONER IN O.S.NO.49/2005 ON
THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & JMFC AT
K.G.F. AND ALLOW THE APPLICATION AS PRAYED FOR &
ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Mr.S.N.Aswatnarayana, learned counsel for the petitioner.
Miss.Rakshitha V.N., for Sri.K.Raghavendra Rao, learned counsel for the respondent.
The writ petition is admitted for hearing. With consent of the parties, the same is heard finally.
2. In this petition under Article 227 the petitioner has assailed the validity of the order dated 09.12.2017 passed by the Trial Court by which the Trial Court has rejected the application of the petitioner 3 under Order 26 Rule 9 of Code of Civil Procedure (hereinafter referred to as 'the Code' for short).
3. Facts giving rise to filing of the writ petition briefly stated are that the petitioner filed a suit seeking the relief of declaration of title and mandatory injunction. It is averred in the plaint that they have purchased suit property situate in Sy.No.51/4 and defendants have encroached on the property of the plaintiff and have raised construction. The respondent filed the written statement in which inter alia it was pleaded that suit property is Katha No.Old 879 & New Katha No.981 and Assement No.1059 and it was stated that the same was purchased from one Smt.Ragina Mary. The petitioners moved an application on 15.04.2014 seeking appointment of the Commissioner. The trial court by an order dated 30.07.2015 allowed the application and appointed Sri.Thippa Reddy, Advocate as Commissioner and issued guidelines to him to submit the report and directed City Surveyor and 4 subordinate officer of City Municipal Council, Robertsonpet to assist the Court Commissioner. The Advocate commissioner submitted the report.
4. The petitioners filed an objection to the report submitted by the Commissioner. Thereafter, on 24.08.2015, the petitioners made another application for appointment of Taluk Surveyor, Bangarpet Taluk as Commissioner for surveying the land of Sy.No.51/4. the trial Court rejected the aforesaid application by an order dated 19.09.2015. The aforesaid order was affirmed by this Court in W.P No.45450/2015 vide order dated 30.11.2015.
5. Thereafter, on 20.07.2016, defendant witness No.1 was called for further cross-examination. It is the case of the petitioners that in the cross- examination defendant witness no.1 stated that he has no objection for survey of the land. Thereupon petitioners filed another application under Order 26 Rule 9 of the Code. The trial court vide order dated 5 09.12.2016 has rejected the aforesaid application. In the aforesaid factual background, the petitioners have approached this Court.
6. Learned counsel for the petitioners submitted that the Trial Court ought to have appreciated that the appointment of Commissioner was necessary for fair and complete adjudication of the controversy involved in the suit. It is argued that application seeking appointment of Commissioner was based on subsequent events viz., admission of the defendant No.1 that he has no objection to survey by the Commissioner.
7. I have considered the submission made by the learned counsel to the parties and perused the records. Pursuant to appointment of the Commissioner by the trial court, the report submitted by the Commissioner was accepted by the trial court. Thereafter, the petitioners filed an application Under Order XXVI Rule 9 of the Code on 24.08.2015, which was dismissed by the trial court by an order dated 6 19.09.2015. The aforesaid order was affirmed by this Court by an order dated 30.11.2015 passed in W.P.No.45450/2015 granting the liberty to the petitioners to raise the same as a ground in appeal, which may be filed, in case the petitioners are required to file an appeal. Admittedly, the aforesaid order has attained finality and binds the parties. Thereafter, the petitioners have filed the subsequent application merely in view of the admission made by defendant witness No.1 during his cross-examination that he has no objection to survey. Mere admission made by defendant witness No.1 cannot confer jurisdiction on the trial court to re-open the matter which otherwise stands concluded by an order passed by the Court which is binding on the trial court. The impugned order passed by the trial court neither suffers from any jurisdictional authority or on the face of the record.
8. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the 7 Constitution cannot be exercised to correct all errors of a judgment of a court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: Jai Singh and Others vs. M.C.D. and Others (2010) 9 SCC 385 and Shalini Shyam Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329] In the instant case the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution.
In the result, the writ petition is dismissed.
Sd/-
JUDGE SS