IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.11 OF 2017 (GM-CPC) BETWEEN:
BASAVARAJU S/O LINGANNA AGED ABOUT 59 YEARS RESIDENT OF NALLUR VILLAGE CHELUR HOBLI, GUBBI TALUK TUMKURU DISTRICT PIN – 572 117 (BY SRI. V.B.SIDDARAMAIAH, ADVOCATE) AND:
THE PANCHAYATH DEVELOPMENT OFFICER NALLUR GRAMA PANCHAYATH NALLUR CHELUR HOBLI GUBBI TALUK TUMKURU DISTRICT PIN – 572 117 ... PETITIONER ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 29.11.2016 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, GUBBI IN O.S.NO.236/2016 ON I.A.NO.iv FILED BY THE RESPONDENT UNDER ORDER XXVI RULE 9 OF CPC 1908 VIDE ANNEXURE ‘E’ AND CONSEQUENTLY, TO DISMISS THE I.A. NO.IV FILED BY RESPONDENT IN O.S.NO.236/2016 VIDE ANNEXURE ‘C’ ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in an injunctive suit in O.S.No.236/2016 is invoking the writ jurisdiction of this Court for laying a challenge to the order dated 29.11.2016, a copy whereof is at Annexure ‘E’ whereby, the learned Additional Civil Judge and JMFC, Gubbi having favoured respondent’s I.A.No.IV filed under Order XXVI Rule 9 of CPC 1908, has appointed a Court Commissioner, to accomplish the task in question.
2. Even after service of notice, respondent / defendant has chosen to remain unrepresented.
3. Having heard the learned counsel for the petitioner and having perused petition papers, the impugned order is unsustainable inasmuch as ordinarily a Court Commissioner is appointed for spot inspection or measurement of the subject property after the evidence is recorded and such evidence warrants some clarification in the form of report to be submitted by the Commissioner. In the present case, even issues have not been framed and trial is yet to commence; that the appointment of Court Commissioner is directed mindlessly by the Court below, which is unsustainable, at this stage.
4. In the above circumstances, this writ petition succeeds; the impugned order is quashed.
However, liberty is reserved to the respondent to renew the request for appointment of Court Commissioner at appropriate stage, if grounds do exist therefor.
All contentions of parties are kept open. No costs.
Sd/- JUDGE nvj