Karnataka High Court
Hidayathulla Sharief vs K. Basavaraju on 28 March, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28th DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION NO.13992/2013 (GM-CPC)
BETWEEN:
Hidayathulla Sharief,
S/o. late M. Sattar,
Aged about 66 years,
R/o. 1st Cross, Muslim Block,
Malavalli Town - 571 430.
... PETITIONER
(By Sri Somashekhar Kashimath, Adv.)
AND:
K. Basavaraju,
S/o. late Krishnegowda,
Aged about 60 years,
R/o. Ravani Village, Kasaba Hobli,
Malavalli Taluk - 571 430.
... RESPONDENT
This writ petition is filed under Articles 226 and 227
of the Constitution of India praying to call for the records
and quash the order passed by the Senior Civil Judge,
Maddur in O.S.No.7/2011 dated 23.2.2013 for remanding
the report of the Court Commissioner with the direction to
execute the Commissioner Warrant properly as per the
memo of instructions filed by both the parties as per
Annexure-E.
2
This petition coming on for preliminary hearing this
day, the Court made the following:
ORDER
Respondent is the plaintiff and the petitioner is the defendant in O.S.No.49/2007 on the file of the Civil Judge (Sr.Dn.,) at Malavalli. Suit has been instituted to pass a decree of mandatory injunction directing defendant to demolish the construction/2 shops, put up in B schedule property and to remove 12 stone pillers fixed in C schedule property, shown in blue colour at GHEF in rough sketch produced along with the plaint and for possession of B and C schedule properties to the plaintiff. Written statement dated 4.9.2007 was filed and issues have been raised on 29.1.2008. Trial of the suit has taken place. Trial Court had appointed DDLR as Commissioner to conduct local inspection. A report having been submitted, finding that evidence of Commissioner who was examined as CW.1 does not show that the Commissioner having executed the commission warrant as per the instructions of both the parties and there being lacunae in the matter of execution 3 of commission warrant, learned Trial Judge being of the opinion that Commissioner has to execute the commission warrant as per the instructions of both the parties, passed an order dated 23.2.2013 directing the re-issuance of commission warrant to DDLR. Assailing the said order, defendant No.14 has filed this writ petition.
2. Sri Somashekhar Kashimath, learned counsel appearing for the petitioner submitted that the commission warrant has been executed as per the instructions of both the parties , which is clear from the evidence of CW.1 and the documents exhibited through him and in the circumstances, it is unnecessary to have directed the Commissioner to conduct further enquiry. Learned counsel submitted that there being a material irregularity committed by the Trial Court in passing the impugned order, interference is warranted.
3. The learned Trial Judge for arriving at the conclusion that there is a need for the Commissioner to 4 execute the commission warrant as per the instructions of both the parties, has opined as follows:
"It is significant to note that the Court Commissioner i.e. DDLR who submitted the report is examined before the Court as CW1. On careful perusal of the evidence of CW1, it is noticed that the Court Commissioner has not executed the commission warrant as per the memo of instructions of both parties. There are some lacunas in executing the Commission Warrant. Considering the evidence of CW1 and also facts and circumstances of the case, I am of the view that the Commission Report submitted by the Court Commissioner has to be remanded back to the Court Commissioner. Hence, I proceed to pass the following."
4. Commissioner was appointed in exercise of power under O.26 R.9 CPC. Commissioner having conducted the local inspection, submitted report and deposed before the Court as CW.1. The Trial Judge having perused the record of the case and the evidence of CW.1, being dissatisfied with the report submitted, in that, the memo of instructions of both the parties having not been fully taken note of while execution of commission warrant, has deemed it necessary to direct further enquiry by the very same Commissioner appointed earlier, i.e., DDLR. The 5 action which the Trial Court has resorted to is in consonance with the provision of O.26 R.12(2) CPC. In the circumstances, there being no irrational act, interference with the impugned order is not warranted.
In the result, petition stands rejected. Commissioner who executed the warrant in the first instance i.e., CW.1 shall execute the warrant when issued, with reference to the memo of instructions of both the parties.
Sd/-
JUDGE Ksj/-