Karnataka High Court
Puggera .A. Thimmaiah vs P.K. Shiva on 11 August, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 11TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.37902 OF 2014 (GM-CPC)
BETWEEN:
1. Puggera A Thimmaiah,
Son of Late Appachu,
Aged 70 years,
2. Puggere T Poovanna,
Son of Thimmaiah P.A.,
Aged 37 years,
Both are residing at
Devanageri village and Post,
Virajpet Taluk,
Kodagu District - 571 218.
...PETITIONERS
(By Shri. T.A. Karumbaiah, Advocate)
AND:
1. P.K. Shiva,
Son of P.S.Kaverappa,
Aged 38 years,
2
2. M.P.Manjula,
Daughter of P.S.Kaverappa,
Wife of M.G.Bopanna,
Aged 35 years,
Both are residing at
Devanageri Village,
Virajpet Taluk,
Kodagu District 571 218,
Presently residing at 1st Cross,
Jayabharathinagar,
Bangalore.
...RESPONDENTS
*****
This Writ Petition filed under Articles 226 and 227 of the
Constitution of India praying to quash Annexure-E the order
dated 3.4.2014 passed by the Civil Judge, Virajpet on I.A.18 in
O.S.No.175/2009 and allow I.A.No.18 filed by the petitioners
as prayed for.
This Writ Petition coming on for Preliminary Hearing
this day, the court made the following:
ORDER
Heard the learned Counsel for the petitioners. The petitioners were the defendants before the trial court in a suit filed by the plaintiff alleging that there is a 'kadanga' or a trench that runs through the property of the plaintiff as well as the defendants. It is the contention of the plaintiff that the 3 defendants have illegally usurped a portion of the kadanga and have erected a gate preventing the entry of the plaintiff through the kadanga which is said to be common property, according to the plaintiff. The defendants in turn, have filed a counter claim to assert that there is no kadanga in existence and the petitioner has purchased the land, which did not include any kadanga and has constructed and formed a road and installed a gate. After the evidence was tendered on behalf of both the parties, since the very existence of the kadanga was disputed, the petitioner herein had sought appointment of a Court Commissioner to inspect the spot and report as to the existence or otherwise of the kadanga. The Trial Court having rejected the application, the present petition is filed.
2. Having heard the learned Counsel for the petitioner and on appreciation of the above facts and circumstances, it is well within the discretion of the Trial Court to order appointment of a Court Commissioner. Notwithstanding the application filed by the petitioner, if the court comes to a 4 conclusion that it is possible for it to give a finding as to the existence or otherwise of the kadanga on the basis of the material on record, it would be well within its discretion. There is no illegality committed. But if however, the petitioner should be in a position to convince the court even at the stage of final arguments, for which purpose the matter is now set down, that it is imperative that the Court Commissioner be appointed, as it would not be possible to decide as to the existence or otherwise of the kadanga on the basis of the material documents produced above, it would not be too late for the court to exercise its discretion even at that stage before rendering its judgment, in appointing a court commissioner. It is clearly within the discretion of the Trial Court to appoint or not to appoint a court commissioner. Therefore, if the petitioners have not been able to convince the court of the need for appointment of a court commissioner, the petitioners are not shut out from seeking to convince the court even at the stage of 5 final arguments. It would not be too late for the court to appoint a Court Commissioner even at that stage.
With that observation, the petition is disposed of.
Sd/-
JUDGE nv