Karnataka High Court
Bruhat Bengaluru Mahanagara Palike vs Sri L R Munigangappa on 20 November, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:41563
WP No. 14838 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 14838 OF 2020 (GM-CPC)
BETWEEN:
BRUHAT BENGALURU MAHANAGARA PALIKE
CORPORATION BUILDINGS
HUDSON CIRCLE
BANGALORE -560 001.
REPRESENTED BY ITS COMMISSISONER.
...PETITIONER
(BY SRI BATHEGOWDA K.V, ADVOCATE)
AND:
SRI L R MUNIGANGAPPA
AGED ABOUT 55 YEARS
S/O LATE L G RAMANNA
Digitally signed
by A K R/AT No. 153, "VISHNU MAHAL"
CHANDRIKA L.G.R LAYOUT, LAGGERE
Location: HIGH BANGALORE - 560 058.
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI M S VARADARAJAN, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY THE XXVII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BANGLAORE IN O.S.8749/2010 ON 11.03.2020 ON IA
AS PER ANNEXURE-A AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:41563
WP No. 14838 of 2020
ORDER
1. The petitioner/defendant in O.S. No.8749/2010 on the file of XXVII Additional City Civil & Sessions Judge, Bangalore is before this Court questioning the rejection of I.A. filed under Order XXVI Rule 9 of Code of Civil Procedure (for short hereinafter referred to as 'CPC') to appoint Assistant Director of Land Records (for short 'ADLR') as Court Commissioner to identify the existence of rajakaluve/natural drain flowing through the suit schedule property.
2. Heard Sri. Bathe Gowda K.V., learned counsel for the petitioner/defendant, Sri.M.S.Varadarajan, learned counsel for the respondent/plaintiff and perused the Writ Petition papers.
3. Learned counsel Sri. Bathe Gowda K.V., would submit that the suit of the respondent/plaintiff is one for permanent injunction to restrain the petitioner/defendant from interfering with the plaintiff's possession and enjoyment of the suit schedule property i.e., two items Sy.No.114 measuring 13 acres 33 guntas and other item Sy.No.115/1 measuring 20 acres 33 guntas.
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NC: 2023:KHC:41563 WP No. 14838 of 2020
4. Learned counsel for the petitioner would submit the petitioner/defendant in its written statement had specifically contended that in item No.2, Sy.No.115/1 of the suit schedule property of Laggere village, there is a natural drain flowing from North to South and North to West and the said drain is being developed for free flow of storm water. Therefore, to find out existence of kaluve/natural drain, petitioner/defendant after completion of evidence filed an application under Order XXVI Rule 4A of CPC (though IA mentions Rule-4A it is to be treated Rule-9) to appoint Court Commissioner i.e., ADLR to identify the existence of kaluve/natural drain in Sy.No.115 of Laggere village, Yeshwanthpur Hobli, Bangalore.
5. Learned counsel for the petitioner/defendant would submit that the Trial Court committed an error in rejecting the said application. It is submitted that it would be necessary for the Court to find out the existence of kaluve/natural drain when the petitioner/defendant has specifically contended that in Sy.No.115 of Laggere village, natural drain/kaluve flows. The petitioner-BBMP intends to develop the said drain for free flow of storm water. Hence, he submits that the trial Court ought to -4- NC: 2023:KHC:41563 WP No. 14838 of 2020 have allowed the application and appointed ADLR as Court Commissioner to find out the existence of kaluve/natural drain.
6. Per contra, learned counsel Sri.M.S.Varadarajan, for the respondent/plaintiff, would support the order of the trial Court and submits that the trial Court on going through the material on record as well as Ex.D1 village map of Laggere village has held that the material on record would be sufficient to find out as to the existence of the natural drain/kaluve in Sy.No.115 of Laggere village. When the trial Court comes to the conclusion that the material on record would be sufficient to decide the dispute between the parties, there is no need to appoint ADLR as Court Commissioner to find out the existence of natural drain/kaluve.
7. Further, learned counsel for the respondent/plaintiff would submit that DW-2 examined on behalf of the petitioner- BBMP has admitted that there is no drain or kaluve in Sy.No.115 of Laggere village. When the evidence on record indicates that there is no drain or kaluve flowing, there is no need to appoint ADLR as Court Commissioner to find out kaluve or drain and hence prays for dismissal of the Writ Petition. -5-
NC: 2023:KHC:41563 WP No. 14838 of 2020
8. Having heard the learned counsel for the parties and on perusal of the Writ Petition papers, I am of the view that the trial Court has committed an error in rejecting the petitioner's application under Order XXVI Rule 4A (Rule-9) of CPC to appoint ADLR as Court Commissioner to find out the drain or kaluve in Sy.No.115 of Laggere village, Yeshwanthpur Hobli, Bangalore North Taluk.
9. The suit of the respondent/plaintiff is one for permanent injunction to restrain the defendant from interfering with the plaintiff's possession and enjoyment over the suit schedule property in Sy.No.115/1 measuring 20 acres 33 guntas. The petitioner/defendant in its written statement has specifically contended that in Sy.No.115 of Laggere village there is natural drain running from North to South and North to West. The said drain is to be developed for free flow of storm water. When such being the case of the petitioner/defendant, the trial Court could not have rejected the application of the petitioner/defendant. The contention of the learned counsel for the respondent/plaintiff that DW-2 examined on behalf of the petitioner/defendant has deposed that there is no drain or -6- NC: 2023:KHC:41563 WP No. 14838 of 2020 kaluve in Sy.No.115 of Laggere village need not be taken note of at this stage. Appreciating evidence of DW-2 at this stage by this Court to consider IA filed under Order XXVI Rule 4A of CPC, may have adverse impact on the merit or otherwise of the suit
10. The findings of the trial Court that Ex.D1 and other material on record would be sufficient to find out the existence of drain or kaluve in the facts and circumstances of the case, may not be correct, when the petitioner/defendant specifically contends that Nala or drain runs through Sy.No.115 of Laggere village and intends to develop for free flow of storm water which is for the benefit of the public. It would be necessary to get the report from ADLR with regard to existence or otherwise of drain or nala by survey apart from Ex.D1-village map, the petitioner/defendant may be able to throw light from the report on spot inspection and survey by ADLR with regard to drain or nala in Sy.No.115 of Laggere village.
11. Moreover, appointment of ADLR as Court Commissioner and obtaining report would not prejudice the case of the respondent/plaintiff. On the other hand obtaining the report would assist the Court in proper appreciation of the -7- NC: 2023:KHC:41563 WP No. 14838 of 2020 dispute between the parties. Order XXVI Rule 9 of CPC enables the Court to appoint Court Commissioner for elucidating any matter in dispute to make such investigation and submit report.
12. In the above said circumstances, the following order is passed:
ORDER
(i) The impugned order dated 11.03.2020 passed on I.A. under Order XXVI Rule 9 of CPC on the file of XXVII Additional City Civil & Sessions Judge, Bangalore is set aside.
(ii) I.A. filed under XXVI Rule 9 of CPC is allowed.
(iii) Trial Court is directed to appoint ADLR of the concerned area as Court Commissioner for local inspection of Sy.No.115/1 of Laggere village in item No.2 of the suit schedule property and submit report with regard to existence or otherwise of natural drain or kaluve.
(iv) With the above observation, the Writ Petition is allowed.
Sd/-
JUDGE GVP/ List No.: 1 Sl No.: 59