IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.53514/2016 (GM-CPC) BETWEEN:
DR. K.T.CHANNESHAPPA S/O SRI K.THIRTHAPPA AGED ABOUT 55 YEARS R/AT FLAT NO.231, B-1 CAUVERY BLOCK NATIONAL GAMES VILLAGE KORAMANGALA BENGALURU – 560 047 ... PETITIONER (BY SRI R.B.SADASIVAPPA, ADVOCATE) AND:
SRI SUBHASH KRISHNAPPA HUCHA REDDY S/O LATE SRI KRISHNAPPA HUCHA REDDY AGED ABOUT 64 YEARS R/AT NO.MF 31/3, MIG BLOCK PWD QUARTERS, II PATHWAY NANDINI LAYOUT BENGALURU – 560 096 ... RESPONDENT (BY SRI C.M.NAGABUSHANA, ADVOCATE FOR C/R) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 15.09.2016 (ANNEXURE-A) PASSED BY THE COURT OF III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY IN O.S.NO.8551/2003.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R 1. The defendant has filed the present writ petition against the order dated 15.09.2016 whereby the trial court has set aside the report prepared by the Court Commissioner (Cw1) and has ordered for appointment of a fresh Court commissioner in the suit in O.S.No.8551/2003 on the file of the City Civil Judge, Bangalore.
2. The respondent/plaintiff filed the aforesaid suit for declaration, mandatory injunction and for permanent injunction in respect of the suit schedule property i.e. OLS Site No.3 in Survey No.55/7 (old no.55/5), Nagarabhavi Village, Yeshwanthpura Hobli, Bengaluru North bearing municipal no.3, 3rd main Road, Nagarabhavi, Ward no.39, Bangalore measuring East to West – 55’ and North to South - 40’ more fully described in the schedule to the plaint contending that he is the owner of the suit property. The defendant filed the written statement and denied the plaint averments. He contended that the entire survey no.55/7 (old no.55/5) was acquired by the Government for the purpose of formation of Kendra Upadhyayara Sangha and sought for dismissal of the suit.
3. After completion of the evidence, the plaintiff filed an application under Order 26 Rule 9 r/w Section 151 of CPC on 17.06.2005 to appoint a Court Commissioner preferably Assistant Director of Land Records, Bangalore Sub-Division, Bangalore to make a survey of the lands bearing Survey nos.55/5 & 55/7 of Nagarabhavi village, Yeshwanthpura Hobli, Bangalore North Taluk and to report in which survey number the property bearing Municipal no.3, 3rd Main Road, Nagarabhavi, Bangalore measuring East to West – 55’ and North to South - 40’ i.e. the suit schedule property is situated reiterating the averments made in the plaint. The said application was resisted by the defendant.
4. The trial court, considering the objections filed by the defendant, by the order dated 09.12.2011, dismissed the application-I.A.No.3 filed by the plaintiff. Aggrieved by the said order, the plaintiff filed a writ petition before this Court in W.P.No.759/2012. This Court, after hearing both the parties, by the order dated 30.11.2012, has allowed the writ petition by setting aside the order passed by the trial court. Further, it has allowed I.A.No.3 and has ordered for appointment of a Court Commissioner only for the purpose of ascertaining whether the property described in the suit in O.S.No.8551/2003 (suit schedule property) exists or not. Further, it has directed that the parties shall suggest the name of the Commissioner and to file memo of instructions before the trial court. Thereafter, one B.Prabhakara, Executive Engineer came to be appointed as Court Commissioner in terms of the order passed by this Court. He has filed a report before the trial court on 10.4.2013. At para 8 of the report, it is stated that there is no site which is scheduled as site no.3 exists at all.
5. In the meanwhile, the plaintiff filed another application on 12.06.2013 under Section 151 of CPC before the trial court for appointment of a fresh Court Commissioner as per the order dated 30.11.2012 made in W.P.No.759/2012 by the learned Single Judge of this Court. The said application came to be rejected on 23.02.2016 and that has reached finality. The trial court, considering the said report, by the impugned order dated 15.09.2016, recorded a finding that the cross examination of Cw1 (Court Commissioner) manifestly show that because of non-identifying the extent of Survey no.55/7 of Nagarabhavi village in the first instance may lead to mistake in identifying the property. In the cross examination, he fairly admitted that Survey no.55/7 can be located only by the revenue officials and not by the Civil Engineer. In a given situation, his whole report loses its legal significance and that cannot be relied in deciding the substantial civil rights of the parties when they are fighting in respect of the very same property. Wherefore holding that the report of Cw1 falls short of the direction of this Court and it hardly meets the requirement of the court in resolving the dispute, the same is set aside. Accordingly, appointment of a fresh Court Commissioner was issued. Aggrieved by the said order, the present writ petition is filed. It is stated by the learned counsel for the parties that in pursuance of the impugned order, the fresh Court Commissioner issued notice to both the parties to appear in the spot to identify the property on 21.03.2019 at 11.00 a.m. That is how the matter is posted before this Court.
6. I have heard the learned counsel for the parties to the lis.
7. Sri R.B.Sadasivappa, learned counsel appearing for the petitioner/defendant contended that the impugned order passed by the trial court appointing a fresh Court Commissioner is not maintainable and the trial court has no jurisdiction to set aside the Commissioner report. He further contended that when the order passed by this Court in W.P.No.759/2012 appointing the Court Commissioner to ascertain whether the property in question exists or not has reached finality and thereafter both the parties filed memo of instructions at that time the present respondent/plaintiff did not object the appointment of B.Prabhakara, Court Commissioner, to ascertain whether the suit property exists or not. Therefore, he contended that the appointment of a fresh Court Commissioner amounts to res judicata under Section 11 of CPC and sought to allow the writ petition.
8. Per contra, Sri C.M.Nagabhushana, learned counsel for the respondent/plaintiff sought to justify the impugned order. He quickly pointed out that the very application filed at the first instance was to appoint Court Commissioner preferably Assistant Director of Land Records, Bangalore Sub-Division, Bangalore to make a survey of all the lands bearing Sy.Nos.55/5 and 55/7 of Nagarabhavi Village and to report the existence of the suit schedule property i.e. site no.3. The report submitted by the Commissioner on 10.04.2013 before the trial court clearly depicts that the Commissioner has not identified the property. Thereafter, he has given wrong report that there is no site which is scheduled as site no.3 exists at all. He further contended that in view of the aforesaid report, the petitioner filed an application under Section 151 of CPC before the trial court on 12.06.2013 to appoint a fresh Court Commissioner in terms of the order passed by this Court dated 30.11.2012 made in W.P.No.759/2012. The said application came to be rejected. The Commissioner (Cw-1), in the cross examination, in categorical terms, he has admitted that because of non-identifying the extent of Survey no.55/7 of Nagarabhavi village in the first instance may lead to mistake in identifying the property. In the cross examination, he fairly admitted that Survey no.55/7 can be located only by the revenue officials and not by the Civil Engineer. In view of the categorical admission made by the Court Commissioner who is not in a position to identify the suit schedule property, the trial court is justified in passing the impugned order. Hence, he sought to dismiss the writ petition.
9. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed the suit for declaration, mandatory injunction and for permanent injunction raising various contentions. The defendant filed the written statement and objections. It is also not in dispute that at the first instance, the plaintiff filed an application under Order 26 Rule 9 of CPC for appointment of a Court Commissioner preferably Assistant Director of Land Records, Bangalore Sub-Division, Bangalore to identify the suit schedule property i.e. site no.3 in Survey nos.55/5 and 55/7 of Nagarabhavi village. The said application came to be rejected by the trial court on 09.12.2011. Thereafter, on the writ petition filed by the plaintiff in W.P.No.759/2012, the learned Single Judge of this Court, after hearing both the parties, by order dated 30.11.2012, allowed the writ petition and recorded a finding as under:
“10. It is relevant to note, the suit is for declaration, permanent injunction and mandatory injunction. The petitioner claims that the suit schedule property is in Sy.No.55/7 (old no.55) of Nagarabhavi village. The respondent claims that he has purchased site No.198 which was formed in Sy.No.1/2, 1/3, 1/4, 1/5, 1/6, 1/7, 2, 10, 50/1, 54/1, 54/4A, 54/4B and 55/5 of Nagarabhavi village by the Kendriya Upadhyayara Sangha(R) and it has nothing to do with the suit schedule property. No doubt, there is a decree in favour of the respondent in respect of site No.198 purchased by him. If it is ascertained whether the property described in the suit schedule in O.S.No.8551/2003 is available or not, it will facilitate the Court to make proper decision. Therefore, in that view of the matter, Court Commissioner can be appointed for limited purpose of ascertaining whether the property described in the suit schedule in O.S.No.8551/2003 exists or not.
11. Therefore, the writ petition is allowed and the impugned order passed by the trial Court in O.S.No.8551/2003 on I.A.No.3 is hereby set aside. I.A.No.3 is allowed and Court Commissioner is appointed only for the purpose of ascertaining whether the property described in the suit schedule in O.S.No.8551/2003 exists or not. The parties shall suggest the name of the commissioner and file their memo of instructions before the trial court.”
10. The order passed by this Court for appointment of a Court Commissioner has reached finality. While submitting memo of instructions, either the parties or the counsels should have taken a little care whether the Executive Engineer, BBMP, can identify the disputed property or not but based on memo of instructions the Executive Engineer proceeded to inspect the spot and submitted the report before the Court on 10.04.2013 and came to conclusion that there is no site which is scheduled as site no.3 exists at all. It is also not in dispute that the Commissioner was examined as Cw1 before the Court. In the cross examination, he has admitted that because of non-identifying the extent of Survey no.55/7 of Nagarabhavi village in the first instance may lead to mistake in identifying the property. Further, in the cross examination by the Court, he fairly admitted that Survey no.55/7 can be located only by the revenue officials and not by the Civil Engineer. Based on such admission of Cw1, the learned Civil Judge exercising his inherent power under Section 151 of CPC has held that in view of the categorical admission made by Cw1, the whole report loses its legal significance and that cannot be relied in deciding the substantial civil rights of the parties when they are fighting in respect of the very same property. Therefore, considering that the report of Cw1 in terms of the directions issued by this Court in the aforesaid writ petition hardly meets the requirement of resolving the dispute, he has appointed a fresh Court Commissioner in consonance with the prayer sought by the plaintiff in the application at first instance.
11. Though Sri R.B.Sadasivappa, learned counsel for the petitioner contended that the application filed for appointment of a Court Commissioner came to be rejected on 23.02.2016 and appointing a fresh Court Commissioner amounts to res judicata under Section 11 of CPC, there is no force in the arguments advanced by the learned counsel for the petitioner, since the application filed by the respondent/plaintiff was only under Section 151 of CPC requesting the trial court to appoint a fresh Court Commissioner in terms of the order dated 30.11.2012 made in W.P.No.759/2012. The issue is not decided earlier, and therefore, the provisions of Section 11 of CPC would not attract in the facts and circumstances of the present case.
12. Insofar as the contention of the learned counsel for the petitioner/defendant that the Court has no power to appoint a fresh Court Commissioner to identify the suit property cannot be accepted for the simple reason that admittedly at the first instance, the application filed by the plaintiff to appoint Assistant Director of Land Records who is a technical person capable of identifying the suit property was rejected by the trial court and the same was reversed by this Court in the writ petition and the Court Commissioner was appointed to ascertain the existence of the suit property. The trial court has recorded a finding that the cross examination of Cw1 manifestly show that because of non-identifying the extent of Survey No.55/7 of Nagarabhavi village in the first instance may lead to mistake in identifying the property. In the cross examination by the Court, the Commissioner has fairly admitted that the existence of the suit property can be located by the revenue officials and not by the Civil Engineer. In those circumstances, the trial court exercising inherent power has rightly set aside the report submitted by Cw1 and the same is in accordance with law.
13. When civil rights are involved in respect of the immovable property and when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested rights in injustice being done because of technicalities. It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
14. Taking into consideration the inherent powers under the provisions of Section 151 of CPC, the trial court has exercised its discretion and has passed the impugned order and the same is in accordance with law. The petitioner has not made out any irregularity in the impugned order passed by the trial court to warrant interference by this Court in exercise of the power under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed. However, it is made clear that mere appointment of a competent Commissioner to locate the existence of the suit schedule property and the report so submitted is not a clinching evidence. It is one of the evidence made by both the parties. Ultimately, the trial court has to decide the suit strictly based on the oral and documentary evidence adduced by both the parties and pass an appropriate order in accordance with law.
15. Sri R.B.Sadasivappa, learned counsel for the petitioner submitted that the Court has fixed the date for spot inspection by the Commissioner tomorrow i.e. 21.03.2019 and the petitioner is residing in Delhi. Therefore, he seeks time. In view of the above, both the parties are directed to appear along with the Commissioner for inspection of the suit property on 30.03.2019. The Commissioner is directed to inspect the spot along with the parties and counsels in accordance with law.
16. The valuable assistance rendered by the learned counsel for the parties is appreciated and placed on record.
In view of dismissal of the writ petition, I.A.No.1/2019 also stands dismissed.
Sd/- JUDGE hkh.