IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.28368 OF 2019 (GM-CPC) BETWEEN:
M.CHANNAMAKEGOWDA S/O.LATE MAKEGOWDA AGED ABOUT 63 YEARS R/AT HONNENAHALLY MATADAKUPPALU VILLAGE RAVANDUR HOBLI PERIYAPATNA TALUK MYSORE DISTRICT-571 108 ... PETITIONER (BY SRI P.M.SIDDAMALLAPPA, ADVOCATE) AND:
1. SRI SHIVANNA S/O.KALLEGOWDA AGED ABOUT 57 YEARS R/AT HONNENAHALLY MATADAKUPPALU VILLAGE RAVANDUR HOBLI PERIYAPATNA TALUK MYSORE DISTRICT-571 108 2. SMT.SAVITHRAMMA W/O.SHIVANNA AGED ABOUT 53 YEARS R/AT HONNENAHALLY MATADAKUPPALU VILLAGE RAVANDUR HOBLI PERIYAPATNA TALUK MYSORE DISTRICT-571 108 ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 16.04.2019 (ANNEXURE-F) PASSED BY THE COURT OF THE CIVIL JUDGE AND JMFC, PERIYAPATNA ON IA.NO.V IN OS.NO.217/2012 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the plaintiff in a declaration suit in O.S.No.217/2012 is knocking at the doors of writ Court for assailing the Order dated 16.04.2019, a copy whereof is at Annexure – F whereby the learned Civil Judge, Periyapatna, having rejected his application filed under Order XXVI Rule 9 of CPC, 1908 has refused to appoint a Court Commissioner inter alia for measuring the subject property.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, the impugned order cannot be faltered inasmuch as there is no dispute as to the location or areal extent of the subject property. No issue, admittedly is framed as to the identity and extent of the subject property, either.
3. Secondly, an order on the application for appointment of Court Commissioner is ordinarily treated as a discretionary decision which the writ Court will seldom interfere unless cogent grounds are made out in view of decision of the Apex Court in the case of SADHANA LODH VS. NATIONAL INSURANCE COMPANY, AIR 2003(3) SCC 524.
The writ petition being devoid of merits is dismissed.
Sd/- JUDGE KTY