Karnataka High Court
The Printers ( Mysore) Pvt. Ltd. vs Smt Nasreen Shakeel on 10 March, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.1253/2014 (GM-CPC)
BETWEEN:
THE PRINTERS (MYSORE) PVT. LTD.,
A COMPANY INCORPORATED UNDER
COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
PLOT NOS.7-12, KUMBALGODU
INDUSTRIAL AREA,
KUMBALGODU II PHASE,
MYSORE ROAD, BANGALORE-560074.
REPRESENTED BY ITS
JOINT MANAGING DIRECTOR,
SRI. K.N. TILAK KUMAR.
... PETITIONER
(BY SRI S.S. NAGANAND SR. COUNSEL FOR
SRI S. SRIRANGA, M/S JUSTLAW)
AND:
1. SMT. NASREEN SHAKEEL,
WIFE OF SHAKEEL PASHA,
AGED ABOUT 46 YEARS,
RESIDING AT NO.11,
AASHIYANA LEONARD ROAD,
RICHMOND TOWN,
BANGALORE-560025.
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2. BANGALROE DEVELOPMENT AUTHORITY,
A BODY CORPORATE CONSTITUTED
UNDER THE PROVISIONS OF
THE BANGALORE DEVELOPMENT
AUTHORITY ACT,1976,
HAVING ITS OFFICE AT
T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE-560020.
REPRESENTED HEREIN
BY ITS COMMISSIONER
... RESPONDENTS
(BY SRI K. THARANATH SHETTY K., ADVOCATE FOR R2;
R1 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR RECORDS IN O.S.NO.16649/2006 & TO SET
ASIDE THE ORDER DATED 16.11.2013 ON I.A.NO.15 FILED
U/O XXVI RULE 9 R/W SECTION 151 OF CPC PASSED BY
THE XIII ADDITIONAL CITY CIVIL JUDGE (CCH NO.22),
MAYO HALL UNIT, BANGALORE VIDE ANNEXURE-G AND
ALLOW THE SAID APPLICATION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The 1st defendant filed the present writ petition against the order dated 16.11.2013 dismissing I.A. No.15 in O.S. NO.16649/2006 on the file of the XIII Additional City 3 Civil Judge, Mayo Hall Unit, Bangalore under Order 26 Rule 9 of the Code of Civil Procedure, 1908 ('CPC' for short).
2. The 1st respondent who is the plaintiff before the trial Court filed O.S. No.16649/2006 for grant of Permanent Injunction restraining the defendant and his agents, servants, workman or anybody claiming through or under her from encroaching upon the schedule property and dispossessing her or in any manner interfering with her peaceful possession and enjoyment of the suit 'A' and 'B' schedule properties. It is the case of the plaintiff that she is the owner in possession and enjoyment of the suit schedule properties. The 1st defendant filed the written statement denying the plaint averments. Subsequently, the 1st defendant filed the amended written statement alongwith the counter-claim under Order-8 Rule-6A of the Code of Civil Procedure, 1908 and sought for declaration that he is the absolute owner of the written statement 'B' schedule property and consequently direct the plaintiff to 4 quit and deliver vacant possession of the written statement 'B' schedule property to him. On these among other grounds, the 1st defendant sought for dismissal of the suit.
3. After completion of evidence on both the sides, when the matter was posted for arguments, the defendant No.1 filed an application - I.A. No.15 under Order 26 Rule 9 r/w Section 151 of the Code of Civil Procedure, 1908 to appoint a Surveyor/Commissioner attached to the office of City Survey office, Bangalore for the purpose of local investigation. It is the case of the 1st defendant that plaintiff has filed the suit for permanent injunction against the defendants and he filed counter-claim for declaration and possession of the property which is in illegal occupation of the plaintiff. The 1st defendant examined one Mr. B.N. Kumar, a private Surveyor to substantiate his case of illegal encroachment and occupation of his property by the plaintiff. The said witness has been cross-examined by the plaintiff. In his cross-examination, the witness has 5 admitted that he had conducted the survey of the written statement schedule property at the instance of 1st defendant and had not issued any notice to the plaintiff at the time of conducting the survey. It is stated that both the sides have concluded their evidence and the matter is set down for hearing final arguments. It is further stated that the question involved in the suit is as to whether the plaintiff has encroached upon a portion of the land allotted to the 1st defendant by the 2nd defendant. The factum of encroachment cannot be proved by oral evidence and can be proved on the basis of the report of a Court Commissioner/Surveyor for the said purpose. Therefore there is a need to appoint a Court Commissioner/Surveyor to take measurements of the plaint schedule property and the written schedule property and prepare a map by mentioning therein the actual measurements and the size of the property owned by the 1st defendant and the encroachment, if any by the plaintiff etc., 6
4. The said application - I.A. No.15 was resisted by he plaintiff by filing objections, contending that the application filed is highly belated and no tangible reasons exist for seeking the appointment of a Commissioner and the 1st defendant has admittedly conducted the survey of the suit schedule property and the written statement schedule property and examined the Surveyor and the survey report is marked in evidence and forms part of the Court records. Hence there is no necessity to appoint fresh Commissioner at a belated stage. Therefore sought for dismissal of the application.
5. After hearing both the parties, the trial Court by the impugned order dated 16.11.2013 dismissed I.A. No.15 filed by the 1st defendant under Order 26 Rule 9 of the Code of Civil Procedure, 1908. Hence the present writ petition is filed.
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6. The plaintiff/1st respondent served and unrepresented.
7. I have heard the learned counsel for the petitioner and the 2nd respondent.
8. Sri S.S. Naganand, learned senior counsel appearing for the petitioner vehemently contended that the impugned order passed by the trial Court rejecting the application filed by the 1st defendant for appointment of Court Commissioner to measure the property of the plaintiff and the 1st defendant is erroneous and contrary to the material on record. Learned senior counsel further contended that the trial Court proceeded to dismiss the application mainly on the ground that the suit is only for bare injunction and there is no necessity for appointment of the Surveyor/Court Commissioner for recording the existing facts, which are already said to have been produced by the 1st defendant by examining the Surveyor, ignoring the fact 8 that the 1st defendant has also filed counter-claim under Order-8 Rule-6A of the Code of Civil Procedure, 1908. He further contended that to resolve the dispute between the parties i.e., the encroachment alleged by the plaintiff against the 1st defendant and the encroachment alleged by the 1st defendant against the plaintiff, the appointment of Surveyor/Commissioner attached to the office of City Survey Office is necessary. Therefore the learned counsel sought to set aside the impugned order passed by the trial Court by allowing the present petition.
9. Learned counsel for the 2nd respondent supports the contentions of learned counsel for the petitioner.
10. In view of the aforesaid arguments advanced by the learned senior counsel for the petitioner, the only point that arises for consideration in the present writ petition is: 9
"Whether the trial Court is justified in rejecting the application - I.A. No.15 filed by the 1st defendant under Order 26 Rule 9 of the Code of Civil Procedure, 1908 in the facts and circumstances of the present case ?"
11. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
12. It is the specific case of the 1st respondent who is the plaintiff before the trial Court that he is the owner in possession of the plaint 'A' and 'B' schedule properties and the 1st defendant without any manner of right is trying to encroach the suit schedule properties. It is the specific case of the 1st defendant in the written statement filed alongwith the counter-claim that the 1st defendant is the owner of the written statement 'B' schedule property and the plaintiff is in illegal possession of portion of the written statement schedule property measuring about 7,986 square 10 feet towards southern boundary of the said property. The portion of the written statement schedule property which is in illegal occupation of the plaintiff is morefully described in the 'B' schedule to the written statement measuring in all 7,986 square feet. To resole the controversy between the parties, the present application for appointment of Court Commissioner is filed by the 1st defendant. The trial Court proceeded to dismiss the application mainly on the ground that the suit filed by the plaintiff is for bare injunction and there is no necessity for appointment of the Court Commissioner for recording the existing facts which are already said to have been produced by the 1st defendant himself.
13. The trial Court failed to notice that there is serious dispute between the plaintiff and the 1st defendant. According to the plaintiff, there is encroachment of his property by the 1st defendant. In the counter-claim, the 1st defendant seriously made allegations against the plaintiff 11 that the plaintiff is in illegal occupation of 7,986 square feet of land which is morefully described in the 'B' schedule in the written statement. Such a disputed fact has to be adjudicated appointing the Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908. Admittedly in the present case, the evidence on both sides is completed and the matter is posted for arguments. Therefore there is no impediment for the trial Court to appoint a Surveyor/Commissioner attached to the office of the City Survey Office, Bengaluru for the purpose of the local investigation, to take measurements of the plaint schedule property and the written statement schedule property, prepare a map by mentioning therein the actual measurements and size of the property owned by both the parties and the encroachment, if any and submit the report, which will be a part of the record and it is one of the evidence alongwith the other evidence adduced or produced by both the parties to the lis. Mere appointing the Court 12 Commissioner after completion of evidence will noway prejudice the case of the plaintiff. The report of the Commissioner would not be a final document to decide the controversy between the parties. The report is one of the document in addition to the evidence produced by both the parties to the lis.
14. It is well settled that the Court Commissioner cannot be appointed to collect the evidence in support of the claim of either of the parties. After completion of evidence on both sides, if it is found there is any ambiguity in respect of measurement of property, encroachment etc., the Court may appoint the Court Commissioner for clarification of such ambiguity. Admittedly in the present suit, suit was filed by the plaintiff for bare injunction and the 1st defendant filed the counter-claim on the ground that the plaintiff has encroached his property and there is hot contest between the parties regarding encroachment. Hence it is just and necessary to survey both the properties 13 and identify the encroachment, if any. In such circumstances, the appointment of the Commissioner should not be mistaken that the same is made for collection of evidence.
15. For the reasons stated above, the point raised in the present writ petition has to be held in the negative holding that the trial Court is not justified in rejecting the application filed by the 1st defendant under Order 26 Rule 9 of the Code of Civil Procedure, 1908 on a wrong notion that the suit is only for bare injunction ignoring the fact that the 1st defendant has also filed counter-claim under Order 8 Rule 6A of the Code of Civil Procedure, 1908 for a declaration that he is the owner of the written statement 'B' schedule property and alleging that the plaintiff has illegally encroached the property.
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16. In view of the above, the writ petition is allowed. The impugned order dated 16th November 2013 on I.A. No.15 made in O.S. No.16649/2006 on the file of the XIII Additional City Civil Judge, Mayo Hall Unit, Bengaluru is quashed. I.A. No.15 filed by the 1st defendant under Order 26 Rule 9 of the Code of Civil Procedure, 1908 is allowed. The Surveyor/Commissioner attached to the office of the City Survey Office is appointed as Court Commissioner for local investigation to take measurements of the plaint schedule property, written statement schedule property, prepare a mahazar by mentioning therein the actual measurements of the properties owned by the 1st defendant and the plaintiff and the encroachment, if any and a submit a report to the trial Court as early as possible.
17. Both the parties to the lis are permitted to file memo of instructions to the Court Commissioner before the trial Court within a period of three weeks.
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18. The parties are directed to appear before the trial Court on 6th April 2017. The trial Court shall proceed with the case after giving opportunity to both the parties in accordance with law.
Sd/-
JUDGE Gss/-