IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.6486/2019 (GM – CPC) BETWEEN:
1. SMT.RATHNAMMA W/O SRI APPAIAH, D/O LATE MUNIYAPPA AGED ABOUT 65 YEARS, R/AT JEDAMAKANAHALLI VILLAGE RAMKUPPAM MANDALAM CHITTOR DISTRICT, ANDHRA PRADESH.
2. SRI SEENAPPA S/O LATE MUNIYAPPA AGED ABOUT 55 YEARS 3. SRI VENKATESHAPPA S/O LATE MUNIYAPPA AGED ABOUT 53 YEARS 4. SRI NAGARAJ S/O LATE MUNIYAPPA AGED ABOUT 52 YEARS 5. SRI CHANDRAPPA S/O LATE MUNIYAPPA AGED ABOUT 45 YEARS PETITIONERS 2 TO 5 ARE R/AT PEELAVARAM MAJARA BALUVANAHALLI SRINIVASANDRA POST KYSAMBALLI HOBLI, BANGARPET TALUK - 563 120. ... PETITIONERS [BY SRI J.G.CHANDRA MOHAAN, ADV.] AND:
1. SRI S.K.M.ALLABAKSH S/O LATE MEHABOOB SABI, AGED ABOUT 61 YEARS 2. SRI MUBARAK PASHA S/O SRI S.K.M.ALLABAKASH AGED 37 YEARS BOTH ARE R/AT RAMAKUPPAM KUPPAM TALUK CHITOOR DISTRICT- 517 401 ANDHRA PRADESH.
3. SRI PAPANNA S/O SRI VENKATESHAPPA AGED ABOUT 57 YEARS, R/AT PEELAVARAM MAJARA BALUVANAHALLI, SRINIVASANDRA POST, KYSAMBALLI HOBLI BANGARPET TALUK - 563 120 …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER OF THE I ADDL. CIVIL JUDGE AND JMFC, KGF IN O.S.NO.208/2013 ON IA-X UNDER ORDER XXVI RULE 9 R/W SECTION 151 OF CPC DATED 16.01.2019 AS PER ANEXURE-A TO THE PETITION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners have challenged the order dated 16.01.2019 passed on I.A.No.10 in O.S.No.208/2013 on the file of the I Additional Civil Judge and JMFC, KGF, whereby I.A. filed by the petitioners/plaintiffs under Order 26 Rule 9 of CPC has been dismissed.
2. The petitioners have filed the suit in O.S.No.208/2013 against the respondents seeking for declaration of title, for rectification of sale deed and permanent injunction. In the said suit proceedings, I.A.No.10 was filed by the petitioners for appointment of Court Commissioner for local inspection, survey of the land and submit report, which came to be dismissed. Hence, this writ petition.
3. Learned counsel Sri. Chandra Mohan J.G. appearing for the petitioners would submit that the Trial Court has not appreciated the material aspects in a right perspective to arrive at a decision in rejecting the application. The rectification of the sale deed relating to the boundaries can be clarified only by a surveyor to be appointed as a Court Commissioner by the Court. Hence, in the circumstances, for the effective adjudication of the dispute between the parties, it is necessary to get the report of the Court Commissioner which has been wrongly rejected by the Trial Court.
4. It is not in dispute that I.A.No.10 has been filed by the petitioners subsequent to conclusion of the evidence. The Trial Court has categorically observed that there is no ambiguity in the evidence adduced by the parties to appoint Court Commissioner as sought for. It is also not a case of allegation of any encroachment by the other side. But only to ascertain the boundaries as suggested by the learned counsel for the petitioners, no Court Commissioner can be appointed. More over, it is a discretionary power vested with the Trial Court either to appoint Court Commissioner or not depending upon the facts of the case. Exercising supervisory power under Article 227 of the Constitution of India, this Court can only examine the exercise of such discretionary power by the Trial Court whether is fair and in judicious manner. The same being fair, the discretionary power exercised by the Trial Court cannot be held to be unreasonable or unjustifiable in the facts and circumstances of the case. No grounds are made out by the petitioners to interfere with the impugned order.
Accordingly, the writ petition stands dismissed as devoid of merits.
Sd/- JUDGE PMR