Karnataka High Court
Kullamanchigaiah Dead By Lrs vs Siddaiah S/O Siddaiah@ Jogi on 6 March, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.18714/2012 (GM-CPC)
BETWEEN:
1. Kullamanchigaiah dead by LRs.
(a) Smt. Siddamma,
W/o. Kullamanchigaiah.
Aged about 68 years.
(b) Kombaraiah,
S/o. Kullamanchigaiah.
Aged about 45 years.
(c) Ramaiah dead by L.Rs.
(a) Janakamma
W/o. late Ramaiah,
Aged about 33 years.
(b) Pallavi,
D/o. late Ramaiah,
Aged about 19 years.
(c) Siddaraju,
S/o. late Ramaiah,
Aged about 18 years.
All are R/o. Bonthgahalli
Kasaba Hobli, Srirangapatna Hobli,
Mandya District.
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2. Smt. Hombalamma,
W/o. Siddaiah,
Aged about 57 years,
Bonthgahalli, Kasaba Hobli,
Srirangapatna Hobli,
Mandya District. ...PETITIONERS
(By Sri K.M. Sanath Kumara, Adv.)
AND:
1. Siddaiah, S/o. Siddaiah @ Jogi,
Major, Bonthgahalli, Kasaba Hobli,
Srirangapatna Hobli,
Mandya District.
2. Chikkaramaiah,
S/o. Sidda @ Kivuda Sidda,
Aged about 77 years,
Bonthgahalli, Kasaba Hobli,
Srirangapatna Hobli,
Mandya District.
3. Manchigaiah,
S/o. Kullamanchigaiah,
Aged about 31 years,
Bonthgahalli, Kasaba Hobli,
Srirangapatna Hobli,
Mandya District.
4. Chikkathayamma,
D/o. Kullamanchigaiah,
W/o. Nagaraju,
Aged about 35 years,
Bonthgahalli, Kasaba Hobli,
Srirangapatna Hobli,
Mandya District.
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5. Chikkamma, W/o. Sheeraiah,
Aged about 43 years,
Hittavalli Village,
House No.231, Bannur Hobli,
Mysore District. ...RESPONDENTS
(By Sri T. Lakshminarayana, Adv. for R1
Notice to R2 to R5 dispensed with)
This petition is filed under Articles 226 and 227 of
the Constitution of India, praying to direct and set aside
the order dated 23.5.2012 passed by the Presiding Officer,
FTC at Srirangapatna in R.A.No.136/2009 vide
Annexure-F.
This petition coming on for preliminary hearing in 'B'
group this day, the Court made the following:
ORDER
O.S.No.48/2000 filed by respondent No.1 against the petitioners and respondents 3 to 5 was dismissed on 19.11.2009. Assailing the said Decree, plaintiff has filed R.A.No.136/2009 in the District Court at Mandya. I.A.3 was filed by the plaintiff - appellant in the appeal, to appoint a surveyor as Court Commissioner to conduct a local inspection of the suit property and for submission of report. Despite the objections filed to the said application, 4 the Court below has allowed I.A.3 and has appointed the Taluka Surveyor as Court Commissioner by an order dated 23.05.2012. This writ petition filed by the legal representatives of defendant No.1 and defendant No.3 is directed against the said order.
2. Heard the learned counsel and perused the writ petition record.
3. In my opinion, the Court below has committed a procedural impropriety in taking up I.A.3 for consideration, ahead of taking up the appeal for hearing and decision. The First Appellate Court ought to have heard the appeal and I.A.3 together and if there was a need for appointment of a Commissioner to conduct a local inspection on account of the evidence on record being insufficient or there was lack of clarity, order on I.A.3 could have been passed. Instead, by keeping the appeal pending and without forming an opinion that the material on record are insufficient to decide the appeal in accordance with law, I.A.3 has been allowed. There is 5 material error and irregularity committed and hence, the impugned order cannot be upheld.
In the result, writ petition is allowed and the impugned order is quashed.
The First Appellate Court is directed to hear R.A.No.136/2009 and I.A.3 together and pass appropriate orders, by keeping in view the observation made supra and in accordance with law.
No costs.
Sd/-
JUDGE sac*