IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.5154/2017 (GM-CPC) Between:
1. Sri. B.A.Muthammaiah, S/o. Late Appuammaiah, Aged about: 63 years.
2. Sri. B.A.Sundara, S/o. Late Appuammaiah, Aged about: 57 years.
3. Sri. B.A.Vasu, S/o. Late Appuammaiah, Aged about: 57 years.
4. Sri. B.A.Janardhan, S/o. Late Appuammaiah, Aged about: 55 years.
5. Sri. B.K.Gopala, S/o. Late Karthammaiah, Aged about: 67 years.
6. Sri. B.K.Ramakrishna, S/o.Late Kuttammaiah, Aged about: 67 years.
All are residing at Chelavara Village, Madikeri Taluk, Kodagu District-571 201. ...Petitioners (By Sri.G.Ravishankar Shastry, Advocate) And:
1. Sri. Palekanda P.Machaiah, S/o. Late Poonacha, Aged about: 79 years.
2. Smt. Palekanda Shanthi Machaiah, W/o. Palekanda Machaiah, Aged about: 72 years.
3. Sri. P.M.Somanna, S/o. Palekanda Machaiah, Aged about: 50 years.
4. P.M.Thimmaiah, S/o. Palekanda Machaiah, Aged about: 47 years.
Respondent Nos.1 to 4 are R/at Chelavara Village, Madikeri Taluk, Kodagu District-571 201.
5. Sri. B.G.Chenguammaiah, S/o. Late Ganapammaiah, Aged about: 77 years.
6. Sri. B.C.Thilaka, S/o. Late B.G.Chenguammaiah, Aged about: 52 years.
Respondent Nos.5 & 6 are R/at Chelavara Village, Madikeri Taluk, Kodagu District-571 201. … Respondents (By Sri. K.Shashikiran Shetty, Sr.Counsel for Sri. I.S.Devaiah, Advocate for R1, 2 & 4; R3, 5 & 6 are served) This Writ Petition is filed under Article 227 of the Constitution of India praying to set aside the order dated 14.09.2016 in O.S.No.89/2012 on I.A.No.5 passed by the Senior Civil Judge & CJM at Kodagu Madikeri vide Annexure-A and I.A.No.5 be allowed as prayed for.
This Writ Petition coming on for Preliminary Hearing in ‘B’ Group, this day, the Court made the following:-
ORDER Petitioners being the plaintiffs in their suit for declaration and possession of subject property in OS.No.89/2012 are knocking at the doors of Writ Court for assailing the order dated 14.09.2016 made by the learned Senior Civil Judge Kodagu, Madikeri at Annexure-A whereby their application in I.A.No.5 filed under Order XXVI Rule 9 read with Section 151 of CPC, 1908 for appointment of Court Commissioner inter alia for identifying the subject property has been negatived. After service of notice the respondents having entered appearance through their counsel resist the Writ Petition.
2. Learned counsel for the petitioners submits that the appointment of Commissioner is essential inasmuch as the respondents in their Written Statement have specifically disputed the very existence of the property, and this issue cannot be adjudicated by the Court below without the aid of Commissioner’s Report. So arguing, he seeks allowing of the Writ Petition.
3. Sri K. Shashikiran Shetty, learned Senior Counsel appearing for the counsel on record for respondents per contra, contends that although they had taken up some plea as to existence/identity of the subject property in their Written Statement, the same now pales into insignificance, in view of respondents’ OS.No.122/2015 for a decree of specific performance against the petitioners herein in respect of the very same property; learned counsel also further points out that no issue as to the identity of the property has been framed nor the petitioners have sought for framing of such an issue. So contending, he seeks dismissal of the Writ Petition.
4. Having heard the learned counsel for parties and having perused the Petition Papers, this Court declines to grant indulgence in the matter because:
(a) there is absolutely no issue as to the identity of the subject property; the appointment of the Commissioner for identifying the said property would have figured if there was any doubt as to it’s identity; the statement of Sri. K.Shashikiran Shetty, the learned Senior Counsel appearing on behalf of the respondent-defendant that the identity and nature of the subject property shall not be otherwise also questioned in the suit proceedings, is placed on record;
(b) the appointment of Commissioner will be like a fifth wheel to the coach that serves no purpose; the Commissioner cannot be appointed merely because a litigating party wants one, even when the grounds for such appointment militantly lack.
In the above circumstances, this Writ Petition is disposed off with the above observations.
No costs.
SD/- JUDGE DS/-