Karnataka High Court
Sri. K.M. Chikkabadappa vs Sri. C. Krishnappa on 8 January, 2014
Equivalent citations: 2014 (1) AKR 697, AIR 2014 (NOC) (SUPP) 592 (KAR)
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 08TH DAY OF JANUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
WRIT PETITION No.45681/2013 (GM-CPC)
BETWEEN:
Sri.K.M.Chikkabadappa,
S/o.Late D.H.Chikkakamanna,
Aged about 70 years,
R/at.Kallambella Village,
Sira Taluk.
Represented by PA holder
Smt.Hemalatha K.C.,
D/o.K.M.Chikkabadappa,
Aged about 40 years,
R/at.Kallambella Village,
Sira Taluk 572132. ...PETITIONER
(By Sri.K.V.Manjunatha, Adv.,)
AND:
1. Sri.C.Krishnappa,
S/o.late D.H.Chikkakamanna,
Aged about 63 years,
R/at.House No.314, 6th Cross,
OMBR Layout, Banasavadi,
Buvanagiri, Bangalore-560 043.
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2. Sri.H.S.Thimmanna,
S/o.Giriyanna,
Aged about 65 years,
R/at.Modalur Village,
Sira Taluk - 572132. ...RESPONDENTS
(By Sri.B.Sharath Kumar, Adv., for R1 and R2).
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This petition is filed under Articles 226 and 227 of the
Constitution of India praying to set aside the impugned order
dated 3-9-2013 passed in O.S.No.183/10 on the file of the
Civil Judge and JMFC at Sira made on I.A. filed under Order
XXVI Rule 9 of CPC at Annexure-A and to allow the said
application.
This petition coming on for Orders this day, the Court
made the following:-
ORDER
In this writ petition under articles 226 and 227 of the Constitution of India, the petitioner has called in question, the order dated 3-9-2013, passed by the trial court in O.S.No.183/2010 on I.A. filed under Order XXVI Rule 9 of CPC vide Annexure 'A'.
2. By the impugned order at Annexure-A, the trial court has rejected I.A. filed under Order XXVI Rule 9 CPC.
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3. Aggrieved by that, the petitioner has filed this writ petition.
4. Briefly stated the facts are:
The petitioner has filed suit in O.S.No.183/2010 for declaration of right of pre-emption and cancellation of the sale deed dated 31-10-2009 executed by the first respondent in favour of the second respondent. In the said suit, at the stage of arguments, the petitioner has filed application for appointment of the Court Commissioner. The trial court has rejected the application. Therefore, the writ petition.
5. The learned counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that the petitioner is in possession and to ascertain the factual aspect Court Commissioner was required and therefore, the impugned order cannot be sustained in law.
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6. As against this, the learned counsel for the respondents submitted that the suit is for declaration of right of pre-emption and cancellation of the sale deed. The questions involved are purely legal questions. Therefore, the trial court has rejected the application and the impugned order does not call for interference.
7. I have carefully considered the submissions made by the learned counsel for the parties.
8. I do not find any merit in the submission of the learned counsel for the petitioner. It is relevant to note, the suit is for declaration of right of pre-emption and cancellation of the sale deed dated 31-10-2009. The parties have adduced evidence. The questions involved in the case have to be considered based on the evidence adduced by the parties. The Trial Court taking into consideration that the questions involved in the case are legal questions and the petitioner has been filing -5- application after application since 2010 and the evidence on record is sufficient to decide the case has rightly rejected the application. Therefore, the impugned order does not call for interference. There is no merit in the writ petition and therefore, it is liable to be rejected.
Accordingly, the writ petition is rejected. The petitioner shall co-operate in disposing of the matter instead of indulging in filing application after application.
Sd/-
JUDGE NT/-.