IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.36596 OF 2017 (GM-CPC) BETWEEN:
1. SMT. BHAGIRATHI, AGED ABOUT 58 YEARS, W/O LATE SRI. KESHAVA AVABRATHA 2. SRI. VENKATESH AVABRATA, AGED ABOUT 39 YEARS, S/O KESHAVA ABABRATHA PETITIONERS 1 AND 2 ARE RESIDENTS OF PRAVESHA, DR. SHIVARAMA KAMATH MARGHA, POST: MOARAVANTHE VILLAGE – 576 224, KUNDAPURA TALUK, UDUPI DISTRICT.
…PETITIONERS (BY SRI.K. CHANDRANATH ARIGA, ADVOCATE) AND:
1. SRI. RAVI MADIVALA, AGED ABOUT 44 YEARS, S/O NANDU MADIVALA, 2. SRI.BABU MADIVALA, AGED ABOUT 47 YEARS, S/O MARLI MADIVALTHI, 3. SRI. SADANANDA MADIVALA, AGED ABOUT 40 YEARS, S/O NANDU MADIVALA ALL ARE REISDENTS OF POST MARAVANTHE VILLAGE – 576 224, KUNDAPURA TALUK, UDUPI DISTRICT.
…RESPONDENTS (BY SRI.SANTHOSH R.NELKUNDRI, ADVOCATE FOR SRI.VIGNESHWAR S.SHASTRI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO.184/2015 ON THE FILE OF THE PRL.CIVIL JUDGE AND JMFC, KUNDAPURA AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners being the plaintiffs in a partition suit in O.S.No.184/2015 are invoking the writ jurisdiction of this court for assailing the order dated 05.08.2017, a copy whereof is at Annexure – E, whereby the learned Prl. Civil Judge & JMFC, Kundapura having favoured respondents’ application in I.A.No.VIII filed under Order XXVI Rule 9 has appointed a Court Commissioner to report on the topography of the area in question for the purpose of ascertaining whether there exists a public road or not.
2. After service of notice, the respondents-defendants have entered appearance through their counsel resist the Writ Petition.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court grants indulgence in the matter because:
(a) the report to be made by the Commissioner after undertaking the spot inspection is going to be handy for the adjudication of the lis in question and more particularly petitioners’ application filed under Section 94(e) r/w Order XXXIX Rules 1 & 2 of CPC, 1908 which is kept pending till after the accomplishment of Commissioners job; the contention that appointment of the Court Commissioner would not serve cause of the case is preposterous, to say the least;
(b) the argument of the petitioners that, Commissioner should not act as an agent of respondents to collect evidence in their support can be taken care of by directing the Commissioner to confine the submission of report only as to the existence of public road in the area concerned; and (c) petitioners appreciation that the Commissioner would take his own time to accomplish the task is also taken care of by making his exercise time bound.
In the above circumstances, this Writ Petition is disposed off by directing the Court below to ensure accomplishment of Commissioner’s task within a period of two months.
It is needless to mention that immediately after Commissioner submits his report, petitioners’ application in I.A.No.2 filed under Section 94(e) and order XXXIX Rules 1 and 2 of CPC shall be taken up for consideration;
All contentions of the parties are kept open including petitioners’ right to object to the report if it goes against their interest.
No costs.
MH/-
Sd/- JUDGE