IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.47860 OF 2018 (GM-CPC) BETWEEN:
K. KAVERI S/O SRI. KUPPASWAMY GOUNDER AGED ABOUT 67 YEARS R/AT KAMAKSHI RICE AND DECORATING BUILDING PARANDAHALLI VILLAGE BETHAMANGALA HOBLI VIA ROBERTSON PET, K.G.F KOLAR DISTRICT-563101 (By Ms. NEERAJA KARANTH, ADV., FOR Mr. SHRIHARI K., ADV.,) AND:
1. K S POULOSE RAVI S/O LATE SABESTINE AGED ABOUT 53 YEARS.
2. SMT. SHEELA POULOSE W/O K.S. POULOSE RAVI AGED ABOUT 48 YEARS.
BOTH ARE R/AT NO.1106 SWARNA NAGAR ROBERTSONPET K.G.F-563177 BANGARPET TALUK KOLAR DISTRICT-563101.
… PETITIONER … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER IN I.A.NO.XVII DATED 10.08.2018 IN O.S.NO.286/2012 ON THE FILE OF IST ADDL. CIVIL JDUGE & J.M.F.C. AT K.G.F. FILED AS ANNEXURE-A TO THE WRIT PETITION AND CONSEQUENTLY, DISMISS THE I.A.NO.XVII IN O.S.NO.286/2012 ON THE FILE OF 1ST ADDL. CIVIL JUDGE & J.M.F.C. AT K.G.F. & ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Ms.Neeraja Karanth for Mr.Srihari K., learned counsel for the petitioner.
2. Heard on the question of admission.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 10.08.2018 passed by Trial Court by which the application preferred by the respondents under Order XXVI Rule 9 of Code of Civil Procedure, 1908 has been allowed.
4. Facts giving raise to the filing of the petition is that the plaintiff has filed a suit seeking the relief of declaration as well as easementary rights against he plaintiff through main gate and have also sought relief of permanent injunction. After the parties had adduced evidence, the respondent filed an application under Order XXVI Rule 9 of the Code for appointment of Court Commissioner to ascertain whether there is any other way to go into the suit schedule property or not. The aforesaid application has been allowed by the Trial Court vide order dated 10.08.2018.
5. Learned counsel for the petitioner submitted that there is enough material on record to show that whether or not there is any other way to go into the suit schedule property. Therefore, the Trial Court erred in directing appointment of a Court Commissioner.
6. I have considered the submissions made by learned counsel for the parties and have perused the record. The scope of jurisdiction under Article 227 of the Constitution of India is well defined by catena of decisions of the Supreme Court in ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS (2010) 9 SCC 385 and ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423.
7. In view of the enunciation of law, the facts of the case may be seen.
8. The Trial Court in the impugned order has held that there is serious dispute between the parties with regard to the issue whether or not there is any other way to go to the suit schedule property. Therefore, the Trial Court has come to a conclusion that in order to effectively resolve the controversy involved between the parties, the appointment of Court Commissioner is necessary. The Trial Court has placed reliance on a decision of a Bench of this Court in ‘MISS RENUKA vs. SRI TAMMANNA AND OTHERS’, ILR 2007 KAR 3029. If the aforesaid order is allowed to stand, the petitioner is not going to suffer any injury much less an irreparable injury as the scope of inspection would be carried out by the Court Commissioner in the presence of petitioner and the petitioner will be given an opportunity to file objections to report as well as the opportunity to cross-examine the court commissioner. The order passed by the Trial Court neither suffers from any jurisdiction infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
In the result, I do not find any merit in the writ petition. The same fails, and is accordingly dismissed.
Sd/- JUDGE SS