IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.39598/2016 (GM-CPC) Between:
1. Shri Nagaraju, S/o Kalegowda, Aged about 58 years, R/o Aladahalli Village, Kasaba Hobli, Holenarasipura Taluk, Hassan District – 576 101.
2. Smt. Radha, W/o Shri Nagaraju, Aged about 48 years, R/o Aladahalli Village, Kasaba Hobli, Holenarasipura Taluk, Hassan District – 576 101.
3. Smt. Chaluvamma, W/o Late Thammegowda, Aged about 73 years, R/o Aladahalli Village, Kasaba Hobli, Holenarasipura Taluk, Hassan District – 576 101.
4. Shri Manju, (Wrongly mentioned as Nanju In the suit in the Trial Court) S/o Late Thammegowda, Aged about 53 years, R/o Aladahalli Village, Kasaba Hobli, Holenarasipura Taluk, Hassan District – 576 101. … Petitioners (By Sri Vighneshwar S. Shastri, Advocate) And:
Smt. Jayamma, W/o Javaregowda, Aged about 63 years, Resident of Aladahalli Village, Kasaba Hobli, Holenarasipura Taluk, Hassan District – 576 101. … Respondent (By Smt. Vijaya M.N., Advocate) This Writ Petition is filed under Article 227 of the Constitution of India, praying to quash the order dated 15.06.2016 passed on I.A. No.V in O.S. No.348/2013 on the file of learned Additional Civil Judge and JMFC, at Holenarasipura as per Annexure-H and etc.
This Writ Petition coming on for preliminary hearing this day, the Court made the following:
ORDER The petitioners who are the defendants before the trial court have challenged the impugned order passed on I.A. No. V filed under Order 26 Rule 9 CPC, whereby the trial court has allowed the application filed for appointment of an Advocate as Court Commissioner to inspect the spot and to submit the report about existence of road.
2. The learned counsel for petitioners contends that the court ought not to have allowed the application prior to conclusion of evidence by both parties.
3. The learned counsel for respondent advances arguments to support the impugned order.
4. It is settled position that normally an application for appointment of Commissioner is to be considered after conclusion of evidence by both parties if the court is of the view that there is ambiguity in evidence warranting appointment of Commissioner.
5. Taking note of the law laid down by this court in the case of Miss Renuka vs. Sri Tammanna and Others reported in ILR 2007 KAR 3029, it is an appropriate case for setting aside the impugned order, however, with a further direction that consideration of the said application is to be deferred till evidence of both sides is complete. After conclusion of evidence of both sides, the trial court to dispose off the said application in accordance with law. Accordingly, the impugned order is set aside. The petition is disposed of subject to above observations.
Sd/- JUDGE Np/-