IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.No.32071 OF 2019 (GM-CPC) BETWEEN 1. SMT.GOVINDAMMA, W/O LATE MUNISHAMAPPA, AGED ABOUT 65 YEARS, RESIDING AT CHANNAPPANAHALLI VILLAGE, VEMAGAL HOBLI, KOLAR TALUK - 563 102.
NOW RESIDING AT NO.106, 1ST CROSS, MUNISHAMAPPA LAYOUT, A.NARAYANAPURA, BENGALURU – 560 016.
2. SMT.BHAGYAMMA.A, D/O LATE ANJINAPPA, AGED ABOUT 45 YEARS, RESIDING AT NO.187, KOTHANUR, BENGALURU EAST TALUK BENGALURU - 560 077.
3. SMT.ANASAMMA, W/O LATE NAGARAJA.A, AGED ABOUT 48 YEARS, RESIDING AT NO.186, KOTHANUR, BENGALURU EAST TALUK, BENGALURU - 560 077.
4. SRI.ANIL KUMAR, S/O LATE NAGARAJA.A, AGED ABOUT 28 YEARS, RESIDING AT NO.186, KOTHANUR, BENGALURU EAST TALUK, BENGALURU - 560 077.
5. SRI.LAKSHMANA, S/O LATE NAGARAJA.A, AGED ABOUT 26 YEARS, RESIDING AT NO.186, KOTHANUR, BENGALURU EAST TALUK, BENGALURU - 560 077.
6. SRI.GANESHA.A, S/O LATE ANJANAPPA AGED ABOUT 48 YEARS, RESIDING AT NO.185, KOTHANUR, BENGALURU EAST TALUK, BENGALURU - 560 077.
7. SRI.C.MUNIRAJU, S/O LATE CHIKKANARAYANAPPA, AGED ABOUT 30 YEARS, RESIDING AT CHANNAPPANAHALLI VILLAGE, VEMAGAL HOBLI, KOLAR TALUK - 563 102.
8. SRI.C.N.HARISHA, S/O LATE CHIKKANARAYANAPPA, AGED ABOUT 26 YEARS, RESIDING AT CHANNAPPANAHALLI VILLAGE, VEMAGAL HOBLI, KOLAR TALUK - 563 102.
9. SMT.SAMPANGAMMA, W/O LATE KRISHNAPPA, AGED ABOUT 55 YEARS, RESIDING AT CHANNAPPANAHALLI VILLAGE, VEMAGAL HOBLI, KOLAR TALUK - 563 102. ... PETITIONERS (BY SRI.NARASIMHA PRASAD S.D, ADVOCATE) AND SRI.V.K.CHANDRASHEKAR, S/O KEMPA DASAPPA, AGED ABOUT 53 YEARS, RESIDING AT MARUTHINAGARA, VEMAGAL VILLAGE AND HOBLI, KOLAR TALUK AND DISTRICT - 563 102. ...RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 08.07.2019, PASSED BY THE HON'BLE COURT OF THE PRINCIPAL CIVIL JUDGE & J.M.F.C., AT KOLAR, ON INTERIM APPLICATION NO.XXI, UNDER ORDER XXVI RULE 9 R/W SECTION 151 OF THE CIVIL PROCEDURE CODE, IN O.S.NO.707/2007 (VIDE ANNEXURE-A HEREIN) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners being the plaintiffs in an injunctive suit in O.S.No.707/2007, are invoking the writ jurisdiction for assailing the order dated 8.7.2019, a copy whereof is at Annexure-A whereby, the learned Principal Civil Judge, Kolar has rejected their application in I.A.No.XI filed under Order XXVI Rule 9 r/w section 151 of CPC, 1908, seeking appointment of a court commissioner for locating and measuring of the suit property.
2. Having heard the learned counsel for the petitioners and having perused the Petition Papers, the impugned order rejecting the request for appointment of court commissioner cannot be faltered inasmuch the identity, extent and boundaries of the subject property are not much in dispute; no issue with regard to that has been framed by the court below nor any effort is made by either side to have such an issue framed. In the absence of any such issue, the request for appointment of commissioner cannot be acceded to vide Apex Court decision in the case of Shreepat Vs. Rajendra Prasad, JT 2000 (7) 379 SC.
3. However, it is open to the petitioners to make the impugned order a ground for challenging the adverse decree if and when made, as provided under section 105 read with Order XLIII Rule1A of CPC, 1908, which aspect the jurisdictional Appellate Court would consider independently of the observations of this Court.
Sd/- JUDGE cbc