IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.48071 OF 2019 (GM-CPC) BETWEEN:
CHANDAPPA S/O. LATE KONDAKARE @ PRASANNA AGED ABOUT 73 YEARS AGRICULTURIST R/O. KARAKUCHI VILLAGE LAKKAVALLI HOBLI TARIKERE TALUK-577 228 CHIKKAMAGALURU DISTRICT ... PETITIONER (BY SRI VIGHNESHWAR.S.SHASTRI, ADVOCATE) AND:
1. K.S.PURUSHOTHAM RAJU S/O. SUBBARAJU AGED ABOUT 63 YEARS AGRICULTURIST R/O.KARAKUCHI VILLAGE LAKKAVALLI HOBLI TARIKERE TALUK – 577 228 CHIKKAMAGALURU DISTRICT 2. K.P.JAGADEESH KUMAR S/O. K.S.PURUSHOTHAM RAJU AGED ABOUT 43 YEARS AGRICULTURIST R/O.KARAKUCHI VILLAGE LAKKAVALLI HOBLI TARIKERE TALUK – 577 228 CHIKKAMAGALURU DISTRICT 3. K.P.LOKESH KUMAR S/O. K.S.PURUSHOTHAM RAJU AGED ABOUT 38 YEARS AGRICULTURIST R/O.KARAKUCHI VILLAGE LAKKAVALLI HOBLI TARIKERE TALUK – 577 228 CHIKKAMAGALURU DISTRICT 4. SMT. MUNIYAMMA W/O. K.S.PURUSHOTHAM RAJU AGED ABOUT 63 YEARS AGRICULTURIST R/O.KARAKUCHI VILLAGE LAKKAVALLI HOBLI TARIKERE TALUK – 577 228 CHIKKAMAGALURU DISTRICT ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 27.08.2019 PASSED ON I.A.NO.20 IN O.S.NO.150/2010 ON THE FILE OF CIVIL JUDGE AND ADDITIONAL JMFC, AT TARIKERE AS PER ANNEUXRE – G 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.150/2010 is invoking the writ jurisdiction of this court for assailing the order dated 27.08.2019, a copy whereof is at Annexure – G whereby the learned Civil Judge, Tarikere having favoured respondents’ application filed under Order XXVI Rule 9 of CPC, 1908, has appointed the DDLR to be the Court Commissioner to inspect the subject property and to submit his report.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to grant indulgence in the matter for the following reasons:
a) the pleading of the parties show that there is some dispute as to the location of the subject properties which can be better addressed with the aid of report of the Court Commissioner; the contention that the subject application of the respondents is virtually for a direction to collect evidence on their behalf is difficult to accept inasmuch as regardless of the text of the prayer in the application, the impugned order is only for the usual inspection of the property in question;
b) assuming that the impugned order is having an error of fact or law apparent on its face, that per se is not a sufficient ground for the indulgence of the writ Court in the absence of demonstrable prejudice occasioned by the impugned order; this apart, the challenge itself is preposterous, since report is yet to be made..
In the above circumstances, this writ petition being devoid of merits is rejected in limine.
It is needless to mention that in the event, the Commissioner’s Report goes adverse to the interest of the petitioner, it is open to him to file the objection thereto which the Court below shall consider objectively and in accordance with law.
All contentions of both the sides are kept open.
Sd/- JUDGE KTY