IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 32572 OF 2015 (GM-CPC) BETWEEN:
NINGEGOWDA S/O RAMEGOWDA, AGED ABOUT 58 YEAR,S R/O HADUVANAHALLI VILLAGE, HALEKOTE HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT-573211.
… PETITIONER (BY SRI. VIGHNESHWAR S SHASTRI, ADVOCATE AND:
1. KALEGOWDA S/O LATE KALEGOWDA, AGED ABOTU 80 YEARS, SINCE DECEASED REP. BY HIS LRS 1(A) SMT. KAMALAMMA W/O LATE KALEGOWDA, AGE: 65 YEARS, R/O HADUVANAHALLI VILLAGE, HALEKOTE HOBLI, BEECHENAHALLI POST, HOLENARASIPURA TALUK, HASSAN DISTRICT-573211.
1(B) H.K.LAKSHMEGOWDA S/O LATE KALEGOWDA, AGE: 32 YEARS, R/O HADUVANAHALLI VILLAGE, HALEKOTE HOBLI, BEECHENAHALLI POST, HOLENARASIPURA TALUK, HASSAN DISTRICT-573211.
1(C) H.K. DINESH, S/O LATE KALEGOWDA, AGE: 24 YEARS, R/O HADUVANAHALLI VILLAGE, HALEKOTE HOBLI, BEECHENAHALLI POST, HOLENARASIPURA TALUK, HASSAN DISTRICT-573211.
1(D) SMT. H.K.MANJAMMA W/O RAJU, D/O LATE KALEGOWDA, AGE: 42 YEARS, R/O HADUVANAHALLI VILLAGE, HALEKOTE HOBLI, BEECHENAHALLI POST, HOLENARASIPURA TALUK, HASSAN DISTRICT-573211.
1(E) SMT. K.ROOPA W/O MANJEGOWDA, D/O LATE KALEGOWDA, AGE: 27 YEARS, R/O HADUVANAHALLI VILLAGE, HALEKOTE HOBLI, BEECHENAHALLI POST, HOLENARASIPURA TALUK, HASSAN DISTRICT-573211.
(BY SRI. M N RAGHU, ADVOCATE FOR R1;
… RESPONDENTS SRI. B K NARENDRA BABU, ADVOCATE FOR R1(A TO E)) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 22.07.2015 PASSED ON I.A.IX ON THE FILE OF O.S. NO.73 OF 2011 ON THE FILE OF CIVIL JUDGE AND JMFC HOLENARASIPURA AS PER ANNEXURE-L.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This writ petition is by the defendant in the suit in O.S.No.73/2011 for an injunctive relief filed by the respondent herein lays a challenge to the order dated 22.07.2015 a copy whereof is at Annexure-L, whereby the learned Civil Judge, Holenarasipura, having considered his application in IA No.9 filed under Order XXVI Rule 9 of CPC, 1908, has declined to appoint a Court Commissioner for measuring the subject property. After service of notice, the respondents having entered appearance through their counsel resist the writ petition.
2. Learned counsel for the petitioner vehemently argues that there is a specific dispute as to the identity of the subject property, whose description does not tally with the sale deed on which the suit is founded; in the Written Statement, the identity of the property is denied; only because the petitioner has lost his earlier suit in O.S.No.104/2004, appeal and second appeal as well, it cannot be said that there is no dispute as to the identity of the suit property; in any event, appointment of the Commissioner would facilitate the adjudication of the lis and there would be no prejudice caused to any party if the Commissioner is appointed. So arguing he seeks allowing of the writ petition.
3. Learned counsel for the respondent No.1 per contra contends that the petitioner’s suit in O.S. No.104/2004 was in respect of the very same property namely, Sy. No.79/1; the appeals in RA and RSA having been lost, the very same property having been described in the present suit in O.S.No.73/2011, there is absolutely no dispute as to the identity of the property and therefore the application of the petitioner has been rightly rejected by the Court below. So contending, he seeks dismissal of the writ petition.
4. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter because:-
(i) the property described in O.S.No.73/2011 admittedly was the property involved in petitioner’s suit in O.S.No.104/2004 which having been dismissed, the dismissal has been affirmed by the first appellate Court in R.A. and by this Court in R.S.A.;
(ii) although the petitioner in his pleadings has taken up certain plea which touches the identity of the property, that per se is not a sufficient ground for the appointment of Commissioner for effecting measurement of and locating the suit property in the absence of any issue having been framed as to the identity of the property;
(iii) the reliance placed by the petitioner on the decision of the Apex Court in the case of SREEPAT VS.
RAJENDRA PRASAD JT-2000-7-SC-379 does not much come to his aid since paragraph No.3 therein mentions about a genuine dispute as to the identity of the property in the suit, whereas such issue does not crop up in the present suit and this Court has taken the view that a Commissioner cannot be appointed merely because such appointment does not prejudice the other side;
(iv) the appointment of the Commissioner cannot be made casual; whether there is genuine dispute as to the identity of the property and the said dispute cannot be adjudged safe by the production of Commissioner’s report, request for appointment of Commissioner is ordinarily favoured subject to all just exceptions into which the case of the petitioner does not fit.
In the above circumstances, this writ petition being devoid of merits is dismissed.
The statement of the learned counsel for the first respondent that the suit has nothing to do with property in Sy.No.79/4 and that the concerned village is not the subject matter of the suit is placed on record.
It is needless to mention that what is derivable in support of either parties by the judgment & decree in O.S.No.104/2004 is the matter for consideration by the Court below.
The observations made hereinabove and also the observations on which the impugned order is founded shall not influence the trial and disposal of the suit.
No costs.
Sd/- JUDGE Bsv