IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.51920 OF 2019 (GM-CPC) BETWEEN:
SMT. PANKAJA, W/O RAJASHEKAR, AGED 41 YEARS, RESIDING AT NO.44, 2ND MAIN ROAD, OPP RAJESH HOTEL, VYALIKAVAL, BENGALURU.
REP BY SPECIAL POWER OF ATTORNEY HOLDER, SRI S.DEVARAJU, S/O SHIVAPPA, AGED 45 YEARS, R/O SARIGEHALLI VILLAGE, DANDINASHIVIRA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT – 572 227.
... PETITIONER (BY SRI. M.B.CHANDRA CHOODA, ADVOCATE) AND:
1 . SRI CHIDANANDA H.S., S/O SHIVARAMEGOWDA, AGED 48 YEARS, AGRICULTURIST, R/O HATTIHALLI VILLAGE, DANDINASHIVARA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT - 572227 2 . SMT. YASHODA, W/O LATE REVANNA, D/O SHIVARAMEGOWDA, AGED 56 YEARS, AGRICULTURIST, R/O PEDDANAHALLY VILLAGE, KADABA HOBLI, GUBBI TALUK, TUMKUR DISTRICT - 572 216.
3 . SMT. VISHALA, W/O BASAVARAJU, D/O SHIVARAMEGOWDA, AGED 53 YEARS, AGRICULTURIST R/O HALUGONDANAHALLI VILLAGE, DANDINASHIVARA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT - 572 227.
4 . SMT. UMADEVI, W/O NIJANANDAMURTHY, D/O SHIAVARAMEGOWDA, AGED 40 YEARS, AGRICULTURIST, R/O GYAREHALLI VILLAGE, SHETTIKERE HOBLI, CHIKKANAYAKANAHALLI TALUK, TUMKUR DISTRICT - 572 214.
5 . SMT. RADHAMANI, W/O NAGESH, D/O SHIVARAMEGOWDA, AGED 38 YEARS, AGRICULTURIST, 6 . SMT. RUKMINI, W/O SADASHIVA, D/O SHIVARAMEGOWDA, AGED 38 YEARS, AGRICULTURIST, RESPONDENTS 5 & 6 ARE R/O ANATHI KODIHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATTANA TALUK, HASSAN DISTRICT - 573 116.
... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 13.11.2109 PASSED ON IA NO.12 IN OS 82/2012 ON THE FILE OF CIVIL JUDGE, JMFC, TURUVEKERE, DURING THE PENDENCY OF THE W.P.; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARIANG THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the defendant in a declaration & injunction suit in O.S.No.82/2012 is invoking the writ jurisdiction of this Court for assailing the order dated 13.11.2019, a copy where of is at Annexure-K, whereby the learned Senior Civil Judge, Turuvekere having favoured respondent-plaintiffs’ application in I.A.No.12 filed under Order XXVI Rule 9 of CPC, 1908 has appointed the Court Commissioner.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, this court is of a considered opinion that the impugned order is unassailable because the petitioner at para 11 of his Written Statement dated 15.11.2014, a copy where of is at Annexure- B has specifically taken up a contention to the effect that the subject property is not in existence at all.
3. The contention of the petitioner that there are already survey reports and therefore, there is no need for Commissioner’s report is preposterous to say the least; whether the evidentiary material is sufficient or not is for the party upon whom the burden rests to prove his case and not for the opponent.
4. The last contention that the application was filed before the closure of the evidence and therefore impugned order is unsustainable too does not come to the rescue of petitioner inasmuch as the impugned order is made admittedly after closure of the evidence, though the said application was filed earlier In the above circumstances, petition being devoid of merits is rejected in limine.
Sd/- JUDGE DS