IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.41397 OF 2018 (GM-CPC) BETWEEN:
Basavaraju S/o Honnegowda @ Amasegowda, Aged about 50 years, R/at Door No.554, 4th Cross, Hosabeedhi, Hinkal, Mysuru – 570 001.
(By Sri. Datta Prasad, Advocate for Sri. Manmohan P.N., Advocate) AND:
1. Honnegowda @ Amasegowda S/o late Honnegowda, Aged about 78 years, R/at Door No.554, 4th Cross, Hosabeedhi, Hinkal, Mysuru – 570 001.
2. Mayappa S/o late Javaregowda, Aged about 71 years, R/at Mayappana Thota, Situated at 4th Stage, … Petitioner Vijayanagara, Mysuru – 570 001.
… Respondents This Writ Petition is filed under Article 227 of the Constitution of India, praying to set aside the order dated 23.07.2018 passed on IA No.IX in OS No.497 of 2011 passed by the Court of Principal Civil Judge (Sr. Dn.) and CJM Mysuru vide Annexure-E and consequently allow IA No.IX as prayed for.
This Petition coming on for Preliminary Hearing this day, the Court made the following:-
ORDER Heard the learned counsel for the petitioner.
2. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 23.07.2018 passed by the trial Court by which his application under Order XXVI Rule 9 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘the code’ for short) has been rejected.
3. Learned counsel for the petitioner submitted that the trial Court has rejected the application under Order XXVI Rule 9 of Code merely on the ground that the suit has been filed seeking relief of partition and permanent injunction. It is further submitted that the petitioner had raised an argument before the trial Court that defendant No.2, who is not a member of the family, has disputed the identity of the suit property in paragraph No.7 of the written statement and in affidavit it was specifically stated that in order to ascertain the identity of the property which is disputed by defendant No.2, it is necessary to appoint a Commissioner. However, the aforesaid aspect has not been taken into account by the trial Court.
4. In view of the aforesaid submissions and in view of the law enunciated by the Hon’ble Supreme Court in the case of in ‘STATE OF MAHARASTRA vs. RAMDAS SHRINIVAS NAYAK AND ANOTHER’, AIR 1982 SC 1249, the appropriate remedy for the petitioner in the facts and circumstances would be to seek a review of the order dated 23.07.2018.
Accordingly, the writ petition is disposed of with liberty to the petitioner to seek for review of the order dated 23.07.2018.
It is needless to state that in case such an application is made by the petitioner, the trial Court shall decide the same in accordance with law.
Sd/- JUDGE dn/-