Karnataka High Court
Simon D Souza vs K. Ravindranath Bajpe on 21 September, 2020
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.10105/2020 (GM-CPC)
BETWEEN:
SIMON D'SOUZA
S/O LEO D'SOUZA,
AGED ABOUT 52 YEARS,
R/AT KALLODI,
MALAVOOR VILLAGE AND POST,
MANGALURU TALUK,
PIN-575014.
... PETITIONER
(BY SRI. K SANATHKUMAR SHETTY, ADV.)
AND:
1. K. RAVINDRANATH BAJPE
S/O KOCHAPPA DEVADIGA,
AGED ABOUT 73 YEARS,
R/AT KALLODI MOODUMANE,
MALAVOORU VILLAGE,
BAJPE POST,
MANGALURU TALUK,
PIN-575014.
ALSO CARRYING ON BUSINESS
UNDER NAME AND STYLE
M/S. SRIDEVI DEPARTMENTAL
STORES AT RASIK CHAMBERS
MARKET ROAD,
MANGALURU-575001.
2
2. STANLEY CRASTA,
S/O WILLIAM CRASTA,
AGED ABOUT 64 YEARS,
R/AT 'PRASHANTH', KALLODI,
MALAVOOR VILLAGE AND POST,
MANGALURU TALUK,
PIN-575014.
3. FREDIC @ FEDRIC SALDANA
FATHER'S NAME NOT
KNOWN TO THE PETITIONER
AGED ABOUT 56 YEARS,
'VALENKANI', KALLODI,
MALAVOOR VILLAGE AND POST,
MANGALURU TALUK,
PIN-575014.
4. MR. JERALD PINTO,
S/O FELIX PINTO,
AGED ABOUT 53 YEARS,
R/AT "SILVERSHINE"
KALLODI, MALAVOOR
VILLAGE AND POST,
MANGALURU TALUK,
PIN-575 014.
5. MR. MELWYN LOBO,
FATHER'S NAME NOT
KNOWN TO THE PETITIONER,
AGED ABOUT 53 YEARS,
R/AT KALLODI, MALAVOOR
VILLAGE AND POST,
MANGALURU TALUK,
PIN-575 014.
6. MR. CYRIL REBELLO,
S/O LATE AMBROSE REBELLO,
AGED ABOUT 68 YEARS,
R/AT KALLODI, MALAVOOR
VILLAGE AND POST,
3
MANGALURU TALUK,
PIN-575 014.
... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO INTERFERE WITH
THE ORDER DATED 21.03.2020 PASSED ON I.A.NO.11 IN
R.A.NO.118/2012 ON THE FILE OF PRINCIPAL SENIOR CIVIL
JUDGE AND CJM, MANGALURU AT ANNEXURE-A BY SETTING
THE SAID ORDER ASIDE .
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THROUGH VIDEO CONFERENCE THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Petitioner is before this Court under Article 227 of the Constitution of India, assailing the order dated 21.03.2020 passed on I.A.No.11 in R.A.No.118/2012 on the file of the Principal Senior Civil Judge and CJM, Mangaluru.
2. Petitioner herein is defendant No.1 and appellant before the trial Court and Appellate Court respectively, whereas respondent No.1 herein is the plaintiff and respondent No.1 before the trial Court and Appellate Court respectively. The first respondent/plaintiff filed a suit in O.S.No.299/2002 seeking relief of permanent prohibitory injunction and for 4 mandatory injunction. The said suit came to be decreed, against which, the petitioner herein filed R.A.No.118/2012. In the said appeal, the Commissioner was appointed for conducting spot inspection and the Commissioner filed his report on 18.07.2019 along with the sketch. The petitioner herein filed objections to the Commissioner Report and prayed for setting aside the Commissioner report. Further, the petitioner/ defendant No.1 also filed an application I.A.No.11 under Order XXVI Rule 10(3) of the Code of Civil Procedure to set aside the Commissioner Report and the sketch attached to the report and to re-issue the Commissioner warrant to the Survey Supervisor attached to the ADLR Office, Mangaluru Taluk. In the affidavit accompanying the application, it is stated that the Surveyor has deliberately shown the existence of way from the property of the appellant running through Sy.No.11/1E2 and 116/1D3 and further the Surveyor has deliberately shown the connectivity in order to show as though there is an alternative road. It is also alleged that the Surveyor has been won over 5 by the other side. Further, the petitioner also stated that the Surveyor has prepared the tampered and fabricated sketch, which requires to be set aside. Respondent No.1/plaintiff filed objections to the said application denying the allegations made in the application. In the objection statement it is stated that the Surveyor has done his job as per the directions of the Court with reference to existing situation in the spot. It is specifically stated that the Surveyor has shown the things in existence on the spot. Thus, prayed for dismissal of the application. The trial Court after hearing both sides under the impugned order dated 21.03.2020 rejected I.A.No.11, which is impugned in this writ petition.
3. Heard the learned counsel for the petitioner through video conference and perused the writ petition papers.
4. Learned counsel for the petitioner would submit that the impugned order is wholly wrong and contrary to law. The First Appellate Court has failed to exercise its jurisdiction vested in it. The Surveyor has deliberately shown the 6 existence of way to show that there is an alternative road. The sketch prepared by the Surveyor is concocted and he is won over by the other side for preparing fabricated sketch. Learned counsel would further submit that the First Appellate Court has failed to consider the objections raised by the petitioner in its proper perspective and examine as to whether the sketch and the report prepared by the Commissioner is proper or not? Thus, he prays for setting aside the impugned order and to allow I.A.No.11.
5. Having heard the learned counsel for the petitioner and on perusal of the writ petition papers, I am of the view that the petitioner would not be entitled for the relief sought for by him for the following reasons:
The Commissioner appointed by the First Appellate Court submitted his report along with the sketch on 18.07.2019. The petitioner herein filed his objection to the Commissioner report as well as to the sketch along with I.A. for rejection of Commissioner report. The trial Court 7 dismissed the application on 18.10.2019 which order was questioned by the petitioner in W.P.No.50399/2019. This Court, by order dated 11.11.2019 disposed of the writ petition holding that the right course was to defer consideration of the application for setting aside the report of the Commissioner till petitioner's application for summoning the Commissioner for cross-examination is decided. Thereafter, the Commissioner was summoned and examined. The petitioner herein cross-examined the Commissioner-C.W.1. The trial Court in its order at paragraph 8 has specifically discussed with regard to the examination and cross-examination of C.W.1. As held by the trial Court, the report of the Commissioner is a piece of evidence which is to be considered along with other evidence or material at the time of final disposal of the suit.
6. Order XXVI Rule 10(2) of CPC reads as follows:
10(2) Report and depositions to be evidence in suit:- The report of the Commissioner and the evidence taken by him (but not the 8 evidence without the report) shall be evidence in the suit and shall for part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation."
7. A reading of the above provision evidently makes it clear that the report of the Commissioner shall be evidence in the suit and shall form part of the record. The said report of the Commissioner along with his deposition is to be evaluated and considered at the time of assessing other evidence or material on record at the time of disposal. It is not the case of the petitioner that there was no notice while executing the Commissioner warrant or no opportunity was given for examining or cross-examining the Commissioner. In fact, as stated above, at the instance of the petitioner, the Commissioner was summoned and the petitioner has examined/cross-examined the Commissioner. The allegations 9 made in the application that the Commissioner had fabricated the sketch or wrongly showed the existence of alternative road is a matter for argument based on the material on record. Since the Commissioner Report is to be evaluated at the time of final argument, I do not find any error in the impugned order. Accordingly, the writ petition is dismissed.
Sd/-
JUDGE mpk/-*CT:VK