IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2017 BEFORE THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA WRIT PETITION No.3432/2016 (GM-CPC) BETWEEN:
SMT. BETTAMMA AGED ABOUT 80 YEARS, W/O. LATE RAMEGOWDA, R/AT MANCHEGOWDANA KOPPAL, MYSORE TALUK, (SENIOR CITIZEN BENEFIT NOT CLAIMED). ... PETITIONER (BY SRI: B.S. NAGARAJ, ADVOCATE) AND:
M.B. CHIKKANNA AGED ABOUT 75 YEARS, R/AT NO.35, MANCHEGOWDANA KOPPAL MYSORE TALUK. ... RESPONDENT (BY SRI: N. NANJUNDA SWAMY, ADVOCATE) ***** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 01.12.2015 PASSED BY THE HON'BLE COURT OF THE II ADDL., I CIVIL JUDGE AND JMFC, MYSORE IN O.S.896/2001 AT ANNEX-K; AND ETC., THIS PETITION COMING ON FOR HEARING - INTERLOCUTORY APPLICATION THIS DAY, COURT MADE THE FOLLOWING:
O R D E R This writ petition is filed to consider I.A.No.I/2017, which has been filed for vacating the interim order granted by this court on 24/03/2016. On that day, this court ordered the trial court to proceed to hear the arguments on the main and not to pronounce the judgment and to wait for the orders of this court.
2. Learned counsel for respondent submits that interim order passed by this court implies that main arguments to be made in the suit is stayed and that order impugned in this writ petition and prayer sought in the petition cannot be considered by this court at this stage nor could it be granted. He draws my attention to the impugned order dated 01/12/2015, which is at Annexure “K”. By that order, the trial court has over ruled the objection raised to the report submitted by the commissioner by defendant/petitioner herein. The said order is impugned in this writ petition.
3. Learned counsel for petitioner submits that the commissioner could not have been appointed at all in the instant case and that the commissioner has not followed the memorandum of instructions issued and therefore, petitioner herein raised vital objections to the said report and that the trial court has over ruled the said objections erroneously.
4. Be that as it may. It is noted from the material on record that the suit has been filed by respondent – plaintiff seeking a judgment and decree of permanent injunction against defendant/petitioner herein in respect of the suit schedule property. During pendency of the suit, trial court appointed a commissioner namely, Town Planning Officer, to measure the suit schedule property and to submit a report. The court commissioner has submitted his report. If the petitioner has any objection to the said report, the same could have been raised along with the main arguments in the suit. There cannot be splitting up of the stages of trial by first seeking to raise the objections to commissioner’s report and thereafter, the trial court to consider the evidence on record for the purpose of adjudicating the suit. Therefore, the trial court ought not to have heard the objections at all. But the trial court has heard objections to the commissioner’s report and has over ruled the same.
5. In the circumstances, when the suit is at the stage of final arguments, the only relief that can be granted to the petitioner is to urge all objections that he has to the commissioner’s report along with the main arguments to be made in the suit. Accordingly, the trial court is directed to consider objections if any, to be raised by the petitioner vis-à-vis commissioner’s report along with the main arguments in the suit on its own merits and the impugned order would not come in the way of reconsidering the same. In the circumstances, writ petition is disposed of in the aforesaid terms.
Interim order granted on 24/03/2016 stands vacated.
Sd/- JUDGE *mvs