IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 28TH DAY OF JULY, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH WRIT PETITION NO.36550 OF 2013(GM-CPC) BETWEEN:
LEELAMMA @ LEELA W/O K.B.LATE JOYI, AGED ABOUT 51 YEARS, HOUSEMAKER, RESIDENT OF NEHRUNAGAR, SORABA ROAD, ANAVATTI, SORABA TALUK, SHIVAMOGGA DISTRICT. ... PETITIONER (BY SRI RAJENDRA S., ADVOCATE FOR SRI S.V.PRAKASH, ADVOCATE) AND:
1. SURYAKALA BAI D/O KRISHNAVENI, AGED ABOUT 41 YEARS, TEACHER, RESIDENT OF NEAR URDU SCHOOL, MARKET ROAD, SORABA TOWN, SHIVAMOGGA DISTRICT.
2. TEENA KUMARI D/O SURYAKALA BAI, AGED ABOUT 20 YEARS, TEACHER, NEAR URDU SCHOOL, MARKET ROAD, SORABA TOWN, SHIVAMOGGA DISTRICT. ... RESPONDENTS (BY SRI VEERENDRA R.PATIL, ADVOCATE FOR SRI N.RAVINDRANATH, ADVOCATE FOR R1 AND R2) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE SR.CIVIL JUDGE, SORAB, DATED 16.7.2013 ON IA.NO.10 IN O.S.NO.47 OF 2012 VIDE ANNEXURE-K ETC., THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff filed a suit for declaration and injunction. An interim order of status-quo was granted. The defendants violated the same. Thereafter, an application was filed seeking amendment. In the interregnum a Commissioner’s report was called for. Without considering the said report the trial court, has rejected the application of the petitioner filed under Order 6 Rule 7 read with Section 151 of CPC on other grounds. Hence, the present petition.
2. The learned counsel for the petitioner contends that the material would indicate that the application requires to be allowed. That the failure of the trial court to consider the Commissioner’s report has led to gross miscarriage of justice.
3. On the other hand, the learned counsel for the respondents disputes the same.
4. The Commissioner has submitted his report dated 3-12-2012. The impugned order is passed on 16-7-2013. The plea was one for amendment. In order to consider such an application it would only be appropriate for the trial court, to have considered the Commissioner’s report. The impugned order does not indicate a reference to the Commissioner’s report at all. Hence, I’am of the view that the application would have been more justly considered, in case, the trial court would have looked into the Commissioner’s report. Hence, I deem it just and necessary to direct the trial court, to consider the Commissioner’s report and thereafter pass fresh orders on I.A.10.
Consequently, the petition is allowed. The impugned order dated 16-7-2013 vide Annexure-K passed on I.A.No.10 in O.S.No.47 of 2012 by the learned Senior Civil Judge & JMFC, Sorab, is set aside. The trial court to consider the Commissioner’s report, hear the learned counsels and thereafter pass appropriate orders on I.A.No.10.
Rule made absolute.
SD/- JUDGE Rsk/-