IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.26418/2017 (GM-CPC) BETWEEN:
Smt.D.Shylaja, D/o Doddarevanna, Aged 68 years, R/at Gandhinagar, Tumakuru, Tumakuru District. ... Petitioner (By Sri.M.B.Chandrachooda, Advocate) AND 1. Sri.C.L.Jayakumar, S/o Lakshminarayana Shetty, Aged: Major.
2. Sri.C.L.Lakshminarasimha Setty, S/o Lakshminarayana Shetty, Aged: Major.
3. Smt.C.J.Pushpavalli, W/o C.L.Jayakumar, Aged: Major.
Respondents 1 to 3 are Residents of Chickpet, Tumakuru – 572101.
4. The Commissioner, Tumakuru Urban Development Authority, Vidyanagar, Tumakuru – 572101.
5. The Commissioner, City Municipal Council, Tumakuru – 572101. ... Respondents (By Sri.P.S.Manjunath, Advocate for R4; Sri.Subramanya.R, Advocate for R5; Sri.T.M.Manjunath, Advocate for R1 to R3) This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order dated 09.06.2017 passed in O.S.No.260/1997 passed on IA filed under Order 26 Rule 9 of CPC on the file of I Additional Civil Judge and JMFC, Tumakuru vide Annexure-F and etc.
This Writ Petition is coming on for Preliminary hearing in ‘B’ group this day, the Court made the following:
ORDER Petitioner being the plaintiff in the injunctive suit in O.S.No.260/1997 is invoking the writ jurisdiction of this Court for assailing the order dated 09.06.2017 a copy whereof is at Annexure – F whereby the learned First Additional Civil Judge, Tumkur has rejected his application filed under Order 26 Rule 9 of the Code of Civil Procedure, 1908 for appointment of commissioner mainly on the ground that the assistance of the commissioner is not at all required regard being had to evidentiary material placed by the parties on record.
2. After service of notice, respondents having 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 declines to grant indulgence in the matter because;
a) the issues are framed by the Court below on 22.08.2000 and out of the seven issues so framed not even one relates to the identity of the property;
b) the order whereby request for appointment of commissioner is rejected by the Court below is a product of exercise of discretion and ordinarily such orders cannot be subject matter of scrutiny at the hands of this Court, exercising power under Article 227 of the Constitution of India in view of decision of the Apex Court in the case of TRIMBAK GANGADHAR TELANG & OTHERS vs. RAMCHANDRA GANESH BHIDE & OTHERS AIR 1977 SC 1222.
In the above circumstances, writ petition is disposed off, without granting indulgence.
All contentions of the parties are kept open.
Sd/- JUDGE UN