IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.43660 OF 2019 (GM-CPC) BETWEEN:
SMT. SAROJAMMA @ SAROJA THULASI, W/O LATE THULASIDASAPPA, AGED ABOUT 79 YEARS, R/AT FARM HOUSE, SITUATE AT SREERAMPURA, PARASAIHNAHUNDI VILLAGE, MYSORE MANANDAVADI ROAD, MYSORE TALUK – 570 001.
... PETITIONER (BY SRI. A.MADHUSUDHANA RAO, ADVOCATE) AND:
SRI.P.T.RAMACHANDRA, S/O SRI.K.THIMMEGOWDA, AGED ABOUT 66 YEARS, R/AT NO.140, PARASAIHNAHUNDI VILLAGE, MYSORE MANANDAVADI ROAD, MYSORE TALUK – 570 001.
... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 02.08.2019 PASSED IN R.A.NO.237/2018 BY THE LEARNED II ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, PRODUCED AT ANNEXURE – E, ALLOW THIS WRIT PETITION WITH COSTS AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being defendant-respondent in R.A. No.237/2018 is invoking the writ jurisdiction of this Court for assailing the order dated 02.08.2019, a copy whereof is at Annexure-E whereby, the learned I Additional Judge suo moto has appointed the commissioner for identifying the suit schedule property with the help of parties and to report on its measurements after noting the boundaries.
2. The learned counsel for the petitioner vehemently contends that although the Court has suo moto power, it could not have made the appointment, in the factual matrix of the appeal; this contention is difficult to accept because at paragraph 3 of his amended Written Statement, a copy whereof is at Annexure-B, petitioner has disputed the description of the suit schedule property.
3. The appointment of Commissioner ordinarily per se does not cause any prejudice that warrants indulgence of Writ court, regardless of its regularity inasmuch as illegality in an order, per se, is not sufficient for invoking the extraordinary jurisdiction under Article 227 of the constitution of India.
In the above exercise to be undertaken by the Commissioner, the impugned order permits participation of all the stake-holders including the petitioner; in addition to this, if the report were to go against the petitioner, it is open for him to file his objection thereto, which the Court below will consider, before accepting the Report.
In the above circumstances, this Writ Petition is disposed off without granting indulgence, however with the observations made herein above.
All contentions of the parties are kept open.
Sd/- JUDGE DS