Karnataka High Court
Sannahaidegowda vs K J Basavaraju on 10 December, 2021
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO. 51958/2019 (GM-CPC)
BETWEEN :
SANNAHAIDEGOWDA
S/O LATE SANNAHAIDEGOWDA
AGED ABOUT 58 YEARS,
EMPLOYEE IN KEB
R/O NO.12, 2ND CROSS,
V C COLONY, PANDAVAPURA TOWN
PANDAVAPURA TALUK
MANDYA DIST - 571 401.
... PETITIONER
(BY SRI. RAJA L., ADVOCATE)
AND :
1. K. J. BASAVARAJU
S/O LATE JAVARASHETTY
@ ANNAYYASHETTY
AGED ABOUT 55 YEARS,
2. K J SRIDHAR
S/O LATE JAVARASHETTY
@ ANNAYYASHETTY
AGED ABOUT 48 YEARS,
3. LILAVATI
D/O LATE JAVARASHETTY
@ ANNAYYASHETTY
AGED ABOUT 40 YEARS,
2
R1 TO R3 ARE
R/O KUMBARKOPPALU
CHINAKURALU HOBLI
PANDAVAPURA TQ,
MANDYA DISTRICT - 571 401.
4. DHANALAKSHMI
W/O SHIVU
AGED ABOUT 30 YEARS,
5. R. KRISHNEGOWDA
S/O RANGEGOWDA,
R4 & R5 ARE
R/O HARAVU VILLAGE
CHINAKURALU HOBLI
PANDAVAPURA TALUK
MANDYA DISTRICT - 571 401.
... RESPONDENTS
(BY SRI.K.E. JAGADEESH., ADVOCATE FOR
SRI. S. RAJASHEKAR., ADVOCATE FOR R1,
R2 AND R5; R4 SERVED
SERVICE OF NOTICE TO R3 IS HELD SUFFICIENT
VIDE ORDER DATED 05.08.2021)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER PASSED BY THE LEARNED CIVIL JUDGE (JR
DN) AND JMFC, PANDAVAPURA (DIST MANDYA) IN
O.S.NO.194/2009 ON I.A.NO.XIII FILED U/S 151 OF CPC
DATED 17.10.2019 PRODUCED ANNEXURE-J TO THE
WRIT PETITION.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE
COURT MADE THE FOLLOWING:
3
ORDER
The petitioner, who is the plaintiff in O.S.No.194/2009 on the file of the Civil Judge and JMFC, Pandavapura [for short, 'the civil Court'], has impugned the civil Court's order dated 17.10.2019.
2. The civil Court by its order dated 11.4.2018 has allowed the petitioner's application under Order XXVI Rule 9 read with Section 151 CPC appointing the Chief Officer of the Town Panchayath, Pandavapura as the Court Commissioner to measure the suit schedule property and submit his report. With the Commissioner's Warrant being issued in consonance with this order, the Chief Officer of the Town Municipal Council of Pandavapura has addressed a communication to the Court on 28.2.2019 (Annexure-G) reporting to the civil Court that when he and the concerned viz., the Revenue Officer and the other officers visited the subject property to execute the 4 Commissioner's warrant, he could not execute the warrant because the petitioner and his family members caused obstruction to the execution of the warrant.
3. Thereafter, the petitioner has filed an application under section 151 CPC, and this time for reissuance of Commissioner's Warrant or for appointing the Deputy Director of Land Records, Mandya as the Commissioner. The civil Court, by the impugned order 17.10.2019, has rejected the application observing that the subject property is within the administrative jurisdiction of the Municipal Council and therefore the application cannot be entertained.
4. It is undisputed by the learned counsel for the parties that the Commissioner's Warrant has not been re-issued after the communication dated 28.2.2019. It is obvious from the communication by the Court Commissioner on 28.2.2019 that the warrant is 5 not executed because of the obstruction by the petitioner and his family members, and the Court Commissioner is appointed at the instance of the petitioner. The petitioner, who persuaded the civil Court to appoint a Court Commissioner, could not have obstructed the execution of the Commissioner's warrant unless, for justifiable reasons, this appointment or the Commissioner's warrant is recalled. If this circumstance is ignored, there would be a premium on highhandedness, and that is impermissible in law.
5. This Court is of the considered view that while rejecting the petitioner's application for reissuance of the Commissioner's Warrant to the DDLR, the civil Court should have proceeded to reissue warrant in terms of its earlier order clarifying that the Commissioner in the event of any obstruction by any party, must avail the assistance of the jurisdictional Police and file report. This Court must therefore 6 interfere and dispose of this writ petition calling upon the petitioner to deposit the sum of Rs.25,000/- with the civil Court on the next date of hearing as costs and the civil Court shall re-issue Commissioner's Warrant in terms of the observation made hereinabove. If there is any default in these regards by the petitioner, the respondents could call upon the civil Court to draw necessary adverse inference at the time of final adjudication.
SD/-
JUDGE nv