IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 35411 OF 2014 (GM-CPC) BETWEEN:
N NINGAPPA, AGED ABOUT 69 YEARS, S/O LATE CHIKKANINGAIAH, RESIDING AT NO. 2713, II MAIN, K G KOPPAL, MYSORE-570001. …PETITIONER (BY SRI. H C SHIVARAMU, ADVOCATE) AND:
SMT DR VIJAYA PRAKASH, AGED ABOUT 47 YEARS, W/O DR N PRAKASH, RESIDING AT NO. 1516, HIG, IV CROSS, VIVEKANANANAGAR, MYSORE-570001. ... RESPONDENT (BY SRI. O SHIVARAMA BHAT, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 07.10.2013 PASSED ON IA NO.16 FILED UNDER ORDER 26 RULE 9 OF CPC PRODUCED AT ANNX-J IN O.S.NO.1107/09.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER In this Writ Petition, the defendant lays a challenge to the order dated 11.10.2013 made by learned I Addl. I Civil Judge, Mysore, whereby the application XVI filed by the respondent/plaintiff under Order XXVI Rule 9 of CPC, has been allowed appointing Sri.Sangameshwar, an Advocate as the Commissioner for holding the local inspection and filing the report after measuring the disputed property.
2. After service of notice, the respondent/plaintiff has entered appearance through her counsel, who opposes the Writ Petition.
3. Learned counsel for the petitioner/defendant vehemently contends that in a suit for injunctive relief, be it permanent injunction or mandatory injunction, no Commissioner can be appointed for collection of evidence; he further submits that once the matter is posted for judgment, the court below grossly erred in entertaining such an interlocutory application, that too, so casually. So arguing, he seeks allowing of the Writ Petition.
4. Learned counsel for the respondent/plaintiff per contra submits that the Commissioner is appointed for inspection and measurement of the property in question so that his report would throw light on the evidence tendered by the parties; after all, an opportunity would be given to the petitioner/defendant to have his say on the report to be submitted; the Commissioner would undertake the exercise in the presence of the parties, if they agree; once the matter is reserved for judgment, no application can be entertained, appears to be not correct; there are exceptional cases where such a course has to be left to be adopted. So arguing, he seeks dismissal of the Writ Petition.
5. I have heard the learned counsel for the petitioner and the learned counsel for the respondent. I have perused the Petition Papers.
6. The first contention that the Commissioner is being appointed for the collection of the evidentiary material is factually incorrect; the provisions of Order XXVI Rule 9 of CPC and other Rules specifically provide for appointment of Commissioner inter alia for local inspection which becomes necessary to explain the evidence placed by the parties on record; it is not a case where the Commissioner is appointed for collecting the evidence, as such.
7. The appointment of Commissioner per se does not prejudice the case of the petitioner/defendant inasmuch as Commissioner shall undertake the exercise after notice to the parties; the court shall hear all the parties to the suit before treating the Commissioner’s report which does not have proprio vigor enforceability/acceptability. In such circumstance, Commissioner cannot be appointed, appears to be legally untenable.
8. Ordinarily, once the case is heard and reserved for judgment, courts do not entertain interlocutory applications, is true; however, in no circumstance, courts would entertain the applications, may not be the correct legal position; an argument to the contrary would make the order reserving the matter for judgment a Great Wall of China blocking all interlocutory applications in any circumstance whatsoever and this would strike the deathknell of very justice which the judicial process is designed to achieve, vide Apex Court decision in the case of K.K.Velusamy Vs. N. Palanisamy 2011 (11) SCC 275.
9. The identical question is already considered by a Co-ordinate Bench of this Court vide judgment dated 14.03.2018 in W.P.No.28749/2015 (GM-CPC) in the case of Sri B.P.Virupaksha Murthy vs. Smt. Anitha. At para 6 the Court framed the following question and at para 7 answered the same as under:
“6. In these circumstances, the only question that arises for this Court’s consideration is:
“Whether the Trial Court erred in receiving the application for appointment of Commissioner after the ‘hearing’ was closed and matter was reserved for pronouncement of judgment, and later, listed for clarification?”
7. The Honourable Supreme Court in K.K.Velusamy vs. N.Palanisamy (2011) 11 SCC 275, while listing the circumstances under which the provisions of Section 151 CPC could be exercised, has enunciated that the restraint which the Courts practice in receiving the interlocutory applications after the arguments are concluded is a matter of convention and this convention cannot be applied as a straitjacket formula when exceptional or extraordinary circumstances justify the receipt and consideration of such application; and in those circumstances, the courts can receive such application to meet the ends of justice and to prevent the abuse of process of Court”.
10. In the above circumstances and no other ground having been urged in the matter, this Writ Petition being devoid of merits, stands dismissed.
Costs made easy.
Sd/- JUDGE Snb/