IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.26208 OF 2019 (GM-CPC) BETWEEN:
1 . OMKARAPPA S/O KAIDALA CHANNABASAPPA OCC:AGRICULTURIST R/O HOVVINAMADU VILLAGE, MATHI POST DAVANAGERE TALUKA AND DISTRICT-577 525.
2 . GEETHA @ GEETHAMMA W/O VIJAYAKUMAR K.C. AGED ABOUT 48 YEARS, OCC:AGRICULTURIST, R/O HOVVINAMADU VILLAGE, MATHI POST, DAVANAGERE TALUKA AND DISTRICT-577 525.
3 . SRIRAMA S/O VIJAYAKUMAR K.C. AGED ABOUT 19 YEARS, R/O HOVVINAMADU VILLAGE, MATHI POST, DAVANAGERE TALUKA AND DISTRICT - 577 525.
4 . SHASHIKUMAR S/O VIJAYAKUMAR K.C. AGED ABOUT 17 YEARS, R/O HOVVINAMADU VILLAGE, MATHI POST, DAVANAGERE TALUKA AND DISTRICT - 577 525. REPRESENTED THROUGH NATURAL GUARDIAN MOTHER PETITIONER NO.2 GEETHA W/O VIJAYAKUMAR K.C.
5 . MALLESHAPPA S/O KAIDALA CHANNABASAPPA AGED ABOUT 45 YEARS, OCC:AGRICULTURIST, R/O HOVVINAMADU VILLAGE, MATHI POST, DAVANAGERE TALUKA AND DISTRICT-577 525.
6 . K.C.PALAKSHAPPA S/O LATE MALLAPPA AGED ABOUT 61 YEARS, OCC: ENGINEER R/O #3, 1ST BLOCK, 8TH CROSS, AKSHAY NAGAR, RAMAMURTHY NAGAR, BENGALURU-560 016.
7 . REVAMMA W/O LATE VEERABDRAPPA AGED ABOUT 63 YEARS, OCC:AGRICUALTURIST R/O HOVVINAMADU VILLAGE, MATHI POST DAVANAGERE TALUKA AND DISTRICT-577 525.
8 . THIPPESWAMY S/O LATE CHANNABASAPPA AGED ABOUT 51 YEARS,OCC:AGRICULTURIST R/O HOVVINAMADU VILLAGE, MATHI POST DAVANAGERE TALUKA AND DISTRICT-577 525.
...PETITIONERS (BY SRI. SHETTY DEEPAK, ADVOCATE) AND:
CHITRAPPA S/O LATE HANUMATHA NAYAK AGED ABOUT 68 YEARS,OCC:AGRICULTURIST R/O HOVVINAMADU VILLAGE, MATHI POST DAVANAGERE TALUKA AND DISTRICT-577 525.
... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 22.03.2019 PASSED ON I.A IN O.S.NO.660/2010, PASSED BY THE ADDITIONAL CIVIL JUDGE DAVANAGERE VIDE ANNEXURE-A; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the defendant in an injunctive suit O.S.No.660/2010 is invoking the writ jurisdiction of this Court for assailing the order dated 22.03.2019, a copy whereof is at Annexure-A, whereby the learned Additional Civil Judge, Davanagere, having favoured plaintiff- respondent’s application filed under Order XXVI Rule 9 of CPC, 1908, has appointed the Surveyor of Taluka Office, Davanagere, as and to be the Commissioner for measuring the suit schedule property for ascertaining the areal extent of encroachment, if any.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to grant indulgence in this case, inasmuch as, mere appointment of Court Commissioner does not create a choate cause of action for invoking the supervisory jurisdiction of Writ Court vested under Article 227 of the Constitution of India especially when the impugned order is a product of exercise of discretionary powers, vide decision of the Apex Court in SADHANA LODH VS. NATIONAL INSURANCE COMPANY, (2003) 3 SCC 524.
3. The other ground for not granting indulgence in the matter is that if & when a report is filed by the Commissioner, it is open to the petitioner to file his Objections thereto if the same is made adverse to his interest which the learned trial Judge shall consider before taking a decision as to the actionability of the said report.
In the above circumstances, this writ petition is disposed off with the above observations.
All contentions are kept open.
Sd/- JUDGE DS