IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.46833 OF 2019 (GM-CPC) BETWEEN:
C.M.SOMAIAH S/O. LATE MACHAIAH AGED ABOUT 76 YEARS THAVOOR VILLAGE BHAGAMANDALA MADIKERI TALUK KODAGU DISTRICT – 571 247, (BY SRI M.C.RAVIKUMAR, ADVOCATE) AND:
1. C.M. PONNAPPA S/O. LATE MEDAPPA AGED ABOUT 65 YEARS 2. C.P.LEELAVATHI W/O. C.M.PONNAPPA AGED ABOUT 57 YEARS 3. C.P.SANDEEP KUMAR S/O. C.M.PONNAPPA AGED ABOUT 39 YEARS 4. C.P.JEEVAN KUMAR S/O. C.M.PONNAPPA AGED ABOUT 37 YEARS 5. C.P.LAXMIKANTH S/O. C.M. PONNAPPA AGED ABOUT 32 YEARS ALL ARE THE RESIDENTS OF THAVOOR VILLAGE BHAGAMANDALA POST ... PETITIONER MADIKERI TALUK KODAGU DISTRICT – 571 247.
... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 19.08.2019 (ANNEXURE-A) PASSED BY THE COURT OF THE PRINCIPAL CIVIL JUDGE AND JMFC AT MADIKERI IN OS.NO.103/2017 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the plaintiff in a declaration suit in O.S.No.103/2017 is invoking the writ jurisdiction of this Court for assailing the order dated 19.08.2019, a copy whereof is at Annexure – A, whereby the learned Principal Civil Judge, Madikeri having rejected his application filed under Order XXVI Rule 9 of CPC, 1908, has refused to appoint the Commissioner as sought for.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to grant indulgence in the matter inasmuch the order is a product of exercise of discretion by the court below and the deeper scrutiny thereof at the hands of this Court is impermissible in view of decision of the Apex Court in the case of SADHANA LODH VS. NATIONAL INSURANCE COMPANY, AIR 2003(3) SCC 524.
3. Even otherwise also the impugned order cannot be faltered inasmuch as there is no dispute as to the identity, location or measurement of the property in question; acceding to the request for the petitioner for appointing the Commissioner would virtually amounts to appointing the agency to collect evidence for the benefit of the petitioner which is impermissible, barring in exceptional cases.
The contention of the learned counsel for the petitioner that there is absolutely no objection for appointment of the Commissioner and that the Court below could not have rejected his application on the ground that it is belatedly made, even if true, is not going to add merits to his claim for appointment. Thus, whether the Court below is justified in having that finding again pales into insignificance.
In the above circumstances, this writ petition is rejected in limine.
Sd/- JUDGE KTY