IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.50629 OF 2019 (GM-CPC) BETWEEN:
MR. A.J.PINTO, S/O B.F.PINTO, AGED ABOUT 71 YEARS, RESIDENT OF KITHTOOR ESTATE, GENDAHALLI POST, VIA BELUR, HASSAN DISTRICT-573 101.
NOT AVAILING SENIOR CITIZEN BENEFIT ..PETITIONER (BY SRI. VIVEK ANAND ANTHONY BRITTO, ADVOCATE) AND:
1 . THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EDUCATION, NEW PUBLI OFFICES, NRUPATHUNGA ROAD, BENGALURU-560 001.
2 . THE DEPUTY COMMISSIONER, HASSAN DISTRICT, HASSAN-573 201.
3 . THE SPECIAL TAHSILDAR, BELUR TALUK-573 115.
HASSAN DISTRICT 4 . THE HEAD MASTER, PRIMARY BOYS SCHOOL, SHANIVARASANTHE, GENDAHALLI POST-573 115 BELUR TALUK, HASSAN DISTRICT ... RESPONDENTS (BY SMT. H.R.ANITHA, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE LEARNED SENIOR CIVIL JUDGE, BELUR IN O.S.NO.20/2016 DATED 10.10.2019 VIDE ANNEXURE-F; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a declaration suit in O.S.No.20/2016 is knocking at the doors of the Writ Court for assailing the order dated 10.10.2019, a copy whereof is at Annexure-F, whereby, the learned Senior Civil Judge, Beluru, having rejected his application filed under Order XXVI Rule 9 of CPC, 1908, has refused to appoint a Court Commissioner for measuring the subject property and for ascertaining the development allegedly made in the said property. The respondents having entered appearance through the learned Government Pleader, Smt. Anitha, resist the Writ Petition.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, in the opinion of this Court the impugned order is unsustainable for the following reasons:
a) suit is admittedly for a decree of declaration and consequently for injunctive relief; the Court below vide order dated 01.02.2017 a copy whereof is at Annexure-C, has framed eight issues, of which the fourth relates the alleged improvement done in the suit property; whether any improvement is done in the suit property and what is the nature & extent of improvement are the matters which are to be adjudged; a report by the Commissioner in this regard becomes handy and clinching; and, b) even otherwise, no prejudice would have caused to the other side if petitioner’s subject application is favoured especially when the report of the Commissioner would facilitate adjudging the lis between the parties; in the event the report goes against the interest of the respondents herein, they can register their objections thereto which the Court below shall consider.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; petitioner’s subject application having been favoured, the Court below is directed to appoint a competent person/Authority as the Commissioner for accomplishing the job/task as indicated above in a time bound manner and at the cost of the petitioner.
All contentions of the parties are kept open.
It is needless to mention that till the Commissioner accomplishes his job, all the hearing of arguments in the suit shall be deferred.
No costs.
Sd/- JUDGE DS