IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.44881 OF 2019 (GM-CPC) BETWEEN:
SMT. ASHIYA BI, W/O LATE MOHAMAD ISMAIL, D/O LATE ADBUL BASHEER SAB, AGED ABOUT 64 YEARS, R/A HALEPETE, KUDUR VILLAGE, KUDUR HOBLI, MAGADI TALUK – 561101, RAMANAGARA DISTRICT. ...PETITIONER (BY SRI H R SANJEEVE GOWDA, ADVOCATE) AND:
1. SRI. CHAND PASHA, @ SYED REHAMATH ULLA, S/O MOHAMMAD ISMAIL, AGED ABOUT 51 YEARS.
2. SRI ST.AZMATHZ, W/O SYED SHAFIULLA, AGED ABOUT 36 YEARS, BOTH THE RESPONDENTS R/A 3RD BLOCK, HALEPETE, KUDUR VILLAGE, KUDUR HOBLI, MAGADI TALUK -561 101, RAMANAGARA DISTRICT. …RESPONDENTS ***** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR ENTIRE RECORDS IN O.S.NO.181/2018 PENDING ON THE FILE OF THE HON’BLE IIND ADDL. CIVIL JUDGE AND JMFC AT MAGADI AND PERSUE THE RECORDS AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner being the plaintiff in an injunction suit in O.S. No.181/2018 is invoking the writ jurisdiction of this Court for assailing the order dated 09.09.2019, a copy whereof is at Annexure-‘A’, whereby, the learned II Additional Civil Judge, Magadi, having favoured respondent’s application in I.A. No.IV filed under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908, has appointed the Court Commissioner for measuring the subject property.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to grant indulgence in the matter, since no tangible prejudice as such is caused by the appointment of the Commissioner; the argument that if Commissioner gives a wrong report that may prejudice the case of the petitioner, is preposterous to say the least. If and when the Commissioner submits a report against the interest of the petitioner, it is needless to mention that the petitioner can file his objections thereto, which the Court below shall consider objectively.
3. Ordinarily, before the recording of evidence, Commissioners are not appointed. However, the Court below in its wisdom has made the impugned order for appointment of the Commissioner, which would not be subject matter of examination by the writ Court, in view of the decision in the case of TRIMBAK GANGADHAR TELANG AND ANOTHER VS RAMCHANDRA GANESH BHIDE AND OTHERS reported in AIR 1977 SC 1222.
5. Writ petition is disposed off keeping open all other contentions and with the observations herein above made.
Sd/- JUDGE SJ