IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NO.25261 OF 2019 (GM-CPC) BETWEEN 1. NINGE GOWDA, AGED ABOUT 56 YEARS, 2. JOGE GOWDA, AGED ABOUT 54 YEARS, 3. BORE GOWDA, AGED ABOUT 52 YEARS, ALL ARE SONS OF LATE NINGEGOWDA, RESIDING AT GANAGARAHUNDI, MARATIKYATHANAHALLI POST, YELAWALA HOBLI, MYSURU- 570 001. ... PETITIONERS (BY SRI.ABUBACKER SHAFI, ADVOCATE) AND 1. SHIVANNA, S/O LATE CHANNABASAVAIAH, AGED ABOUT 62 YEARS, 2. BETTE GOWDA, S/O LATE MARIBETTEGOWDA, AGED ABOUT 56 YEARS, RESIDENT OF KAMPALAPURA VILLAGE, BOTH ARE RESIDING AT GANAGARAHUNDI, MARATIKYATHANAHALLI POST, YELAWALA HOBLI, MYSURU – 570 001. ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 13.11.2018 PASSED ON I.A.NO.2 FILED UNDER ORDER 26 RULE 9 OF CPC BY THE I ADDL. DISTRICT JUDGE AT MYSURU IN R.A.NO.385/2016 VIDE ANNEXURE-G AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners being the plaintiffs in a declaratory suit in O.S.No.199/2003 and appellants in R.A.No.385/2016 are knocking at the doors of writ court assailing the order dated 13.11.2018, a copy whereof is at Annexure-G, whereby the learned Ist Addl. District Judge, Mysore had rejected their application in I.A.No.2 filed under Order XXVI Rule 9 of CPC, 1908 in which they had sought for appointment of a Court Commissioner.
2. Learned counsel for the petitioners argues that the Lower Appellate Court ought to have favoured the application inasmuch as the appointment of Commissioner would facilitate the adjudication of the lis now in their appeal, especially when the learned trial Judge while dismissing the suit has observed that the Report submitted by the Commissioner appointed by it was unworthy of consideration.
3. Having heard the learned counsel for the petitioners and having perused the petition papers, this Court declines to grant indulgence in the matter for the following reasons:
(i) the Commissioner appointed by the trial Court had submitted the Report which arguably is favourable to the petitioners; however, the trial Court did not consider it worthy of being looked into; petitioners have made the observation of the trial Court a ground in their Regular Appeal, which is still pending; therefore, the said Report still being part of the record, another Commissioner cannot be appointed as rightly held by the lower Appellate Court; and (ii) it is open to the petitioners to urge before the lower Appellate Court that the trial Judge is not justified in not acting upon the Report of the Commissioner which is in their favour; the Courts are of consistent view that appointment of multiple Commissioners and soliciting multiple reports is not desirable save by exceptions vide BALAKRISHNA MENON vs. PADMAVATY AMMA, AIR 1993 KER 218; case of the petitioners does not fit into any such exceptions.
In the above circumstances, this writ petition is disposed off without interference.
However, all contentions as to worthiness of the report of the Commissioner appointed by the court below are kept open for being urged in the pending appeal.
Sd/-
JUDGE cbc