IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.10733/2019 (GM-CPC) Between:
Smt. Mallika C Rao, W/o Late Chandrakant Rao, Aged about 46 years, R/a No.261, 1st Main, Dollars Colony, RMV II Stage, Bengaluru – 560 094. … Petitioner (By Sri K.S. Chandrahasa, Advocate) And:
Sri R. Raghu, S/o Late P.C. Rajanna, Aged about 38 years, R/a Venkatagiri Kote Village & Post, Devanahalli Taluk, Bengaluru Rural District – 562 110. … Respondent (By Sri R. Harsha, Advocate) This Writ Petition is filed under Article 227 of the Constitution of India, praying to quash the impugned order I.A. No.4 in O.S. No.4586/2012 dated 28.01.2019 on the file of X Additional City Civil and Sessions Judge, Bengaluru produced at Annexure-A and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioner who is defendant before the trial court has challenged the order of the trial court passed on I.A.No.4, whereby the trial court has allowed the application filed under Order 26 Rule 9 r/w 151 CPC appointing the jurisdictional ADLR as Court Commissioner for identification of site no.29 and site no.629 in order to find out in which survey numbers they are situated and for preparation of sketch and to submit report.
2. The learned counsel for petitioner submits that in a suit for injunction, the Commissioner cannot be appointed so as to record finding regarding possession. It is further submitted that identification of petitioner’s site is as per the sketch of the Society which has formed the layout, the copy of which is already part of lower court records and the extract is enclosed at Annexure-‘E’. It is further submitted that site no.629 is shown in the said sketch and as the plaintiff claims title through the said Society, petitioner is bound by such identification and hence the question of appointment of Commissioner would not arise. It is further contended that the scope of suit for injunction cannot be enlarged by way of appointment of Commissioner. Various other arguments are advanced with respect to question of identification of property of the plaintiff and it is submitted that the scope of a mere suit for injunction cannot be enlarged.
3. The learned counsel for respondent submits that an order has been passed by the trial court in exercise of judicial discretion and draws attention of this court to the observation of the trial court at point no.1, wherein the trial court has observed that identity of site no.29 and 629 would be required to be established with reference to survey numbers. He further submits that there is apparent contradiction between the sketch at Annexure-‘E’ produced by the Society and the Layout plan at Ex.P8 of the NTI House Building Co-operative Society. It is submitted that the Layout plan at Ex.P8 would point out the location of Site No.629 as being within Sy.No.17/4, whereas layout plan relied on by the Society and which is part of the lower court records points out to the location of site in Sy.No.17/3 (as per Annexure-‘E’).
4. After hearing the learned counsel on both sides, this court finds that no doubt the trial court while passing the judgment must be acutely conscious regarding framework of the suit being one for mere injunction however, that is a matter to be decided while passing of final judgment by noticing as to whether question that has been raised in the light of defence of the defendant are such that a mere suit for injunction would not lie. The order has been passed in exercise of judicial discretion wherein the court has opined that identity of site no.29 and 629 vis-à-vis survey number are required to be established. Insofar as question raised regarding identity of sites, both the parties are at liberty to furnish memo of instructions suitably. The Commissioner would be an appropriate authority to determine the location vis-à-vis the survey numbers which would enable the court to finally decide the dispute. In light of exercise of power by the trial court in its discretion and noticing doubt raised by the trial court regarding identity of the property, it would be appropriate that the order of the trial court be left undisturbed. It is made clear that the parties are at liberty to issue appropriate memo of instructions and the trial court to ensure that the Commissioner take note of the memo of instructions while executing the warrant.
5. The learned counsel for petitioner has contended that no layout has been formed as per Ex.P8.
However, it is open for the petitioner to seek for necessary determination in that regard by way of appropriate memo of instructions. Accordingly, the petition is disposed off subject to the above observations.
Pursuant to the report that is submitted by the * Commissioner, taking note that the suit is of the year 2012, the trial court to expedite the trial taking note of the seniority of the present case vis-à-vis over pending matters.
Sd/- JUDGE Np/-
* Corrected vide Court order dated 20.11.2019.