Karnataka High Court
Shri Munichandra vs The Commissioner Bda on 31 May, 2013
Author: K.Bhakthavatsala
Bench: K.Bhakthavatsala
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 31ST DAY OF MAY 2013
BEFORE
THE HON'BLE Dr. JUSTICE K.BHAKTHAVATSALA
WRIT PETITION No.10639/2013 (GM-CPC)
BETWEEN :
SHRI MUNICHANDRA
S/O LATE RAMAIAH,
AGED ABOUT 61 YEARS,
NO.14,
MUNESWARA TEMPLE STREET,
KADIRENAHALLI,
BANASHANKARI II STAGE,
BANGALORE-560 070. ...PETITIONER
(By Sri. PRAKASH T HEBBAR, ADV.)
AND :
1 THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST,
BANGALORE-560 020.
2 THE COMMISSIONER
BRUHATH BANGALORE
MAHANAGARA PALIKE(BBMP),
HUDSON CIRCLE,
BANGALORE-560 009.
2
3 THE DEPUTY COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST,
BANGALORE-560 020.
4 THE EXECUTIVE ENGINEER
NO.2. PROJECT DIVISION,
BANGALORE DEVELOPMENT AUTHORITY,
BANASHANKARI II STAGE,
BANGALORE.
5 THE ASSISTANT EXECUTIVE ENGINEER
(SOUTH SUB-DIVISION),
BANGALORE DEVELOPMENT AUTHORITY,
BANGALORE.
6 THE PRESIDENT/SECRETARY
M/S RADHAKRISHNA HOUSE BUILDING,
CO-OPERATIVE SOCIETY,
NO.692, 10TH MAIN ROAD,
4TH BLOCK, JAYANAGAR,
BANGALORE-560 011.
7 SHRI.L.R.SHIVARAMEGOWDA
S/O LATE RAMEGOWDA,
AGED ABOUT 59 YEARS,
R/AT NO.2369,
19TH CROSS, K.R.ROAD,
BANASHANKARI II STAGE,
BANGALORE. ...RESPONDENTS
(By Sri. M KARUNAKARAN FOR R1, 3-5,
Sri.B.V.MURALIDHAR, ADV. FOR R-2,
Sri.B.RAJANNA, ADV. FOR R-6)
THIS W.P. IS FILED UNDER ARTICLES 226 & L227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
3
IMPUGNED ORDER DATED 20.2.2013 PASSED BY THE
HON'BLE CITY CIVIL JUDGE REJECTING I.A. NO.11/2013
FILED BY THE PETITIONER / PLAINTIFF IN O.S.
NO.5536/2007 AND FURTHER BE PLEASED TO ALLOW
THE I.A. VIDE ANNEXURE-H AS PRAYED FOR.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner who is plaintiff in O.S.No.5536/2007 on the file of City Civil Judge, Bangalore city, is before this Court praying for quashing the Order dated 20.02.2013 at Annexure 'H' passed on I.A.II/13 filed in the above said suit.
2. Learned counsel for the petitioner submits that the petitioner/plaintiff has filed a suit against the respondents for declaration that he is absolute owner in possession and enjoyment of the suit schedule property, viz., 12½ guntas of land in Survey No.71 situated at Kathriguppe village, Uttarahalli Hobli, Bangalore south taluk and also sought for permanent injunction against 4 the defendants and at the stage of arguments on main, the petitioner filed an application under Order XXVI Rule 9 read with Section 151 of CPC for issuing commission to the Tahsildar or Special Tahsildar or the Assistant Director of Land Records to identify the plaint schedule property as mentioned in the Relinquishment Deed dated 05.12.1989 at Ex.D.22 claimed by the Defendants 1 to 5; to prepare a detailed sketch with regard to the suit schedule property and also the extent of 34,920 square feet claimed by Defendants 1 to 5 is civic amenity site and submit report, but the Trial Court erred in rejecting the application. He submits that appointment of a Commissioner is necessary for adjudication of the dispute and he relies upon the decision reported in JT 2000(7) SC 379 (SHREEPAT vs. RAJENDRA PRASAD AND OTHERS) and AIR 1982 KAR 233 (B.JAGANNATH vs. N.C.NARAYANAPPA AND ANOTHER). He also submits that while passing the impugned Order, the Trial Court has made certain observation touching 5 the merits of the suit.
3. Learned counsel for Respondents 1, 3 and 5 submits that there is no illegality or infirmity in the impugned Order and the impugned Order does not call for interference in the light of the decision reported in AIR 1996 KAR 257 (PUTTAPPA vs. RAMAPPA) and AIR 1982 KAR 233 (B.JAGANNATH vs. N.C.NARAYANAPPA AND ANOTHER).
4. Learned counsel for Respondent No.2 submits that there is no illegality or infirmity in the impugned Order.
5. Admittedly, the suit was ready for final disposal. The Court perused the documents and issues and came to a conclusion that appointment of a Commission was necessary. The petitioner has given boundaries to the suit schedule property and also says that he is in possession of the suit property. Under such circumstances, appointment of a Commissioner as prayed for by the petitioner was unnecessary. The 6 decision cited by the learned counsel for the petitioner are of no avail to the case of the petitioner. I see no good ground to interfere with the impugned Order passed on I.A.II/13 filed under Order XXVI Rule 9 of CPC. The contention of the learned counsel for the petitioner that some of the observations made in the impugned Order would prejudice the case of the petitioner is concerned, it is made clear that if there is any such observation made in the impugned Order, the Trial Court shall dispose off the case untrammeled by the observations made in the impugned Order.
6. In the result, petition fails and the same is hereby rejected.
Sd/-
JUDGE bnv*