IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.49292 OF 2017 (GM-CPC) BETWEEN:
1. SRI.CHANDRASHEKARAIAH, S/O S.NANJUNDAIAH, AGED ABOUT 67 YEARS, R/O SINCHANA, I CROSS, KUVEMPU NAGARA, CHIKKAMAGALUR – 577 101.
2. SRI.PUTTASWAMY, S/O S.NANJUNDAIAH, AGED ABOUT 50 YEARS, R/O HUNASAGATTA VILLAGE, TARIKERE TALUK, CHIKKAMAGALUR – 577 228.
3. SMT. CHANDRAMMA, D/O S.NANJUNDAIAH, AGED ABOUT 75 YEARS, R/O HUNASAGATTA VILLAGE, TARIKERE TALUK, CHIKAMAGALUR – 577 228. ... PETITIONERS (BY SRI.RUDRAIAH M., ADVOCATE) AND:
1. SRI.S.N.YOGISH, S/O NANJUNDAIAH, AGED ABOUT 55 YEARS, R/O NIVEDITHA HIGHER PRIMARY SCHOOL, GALIHALLY VILLAGE CROSS, DORANAL POST, TARIKERE TALUK, CHIKKAMAGALUR – 577 228.
2. SRI.P.BASAVARAJU, S/O PUTTASWAMY, AGED ABOUT 43 YEARS, R/O PILLENAHALLY VILLAGE, KADUR TALUK, CHIKKAMAGALURU – 577 548. ... RESPONDENTS (BY SRI.SANDESH T.B., ADVOCATE FOR R1 AND R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 16.10.2017 IN O.S.NO.47/2010 ON THE FILE OF THE CIVIL JUDGE AND ADDITIONAL JMFC, TARIKERE AS PER ANNEXURE – P AND TO REJECT THE REPORT AND SKETCH FILED BY THE COMMISSIONER AS PER ANNEXURE – N TO N6 AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the defendants in an injunctive suit in O.S.No.47/2010 is invoking the writ jurisdiction of this Court for assailing the order dated 16.10.2017, a copy whereof is at Annexure-B whereby the learned Civil Judge, Tarikere has rejected his objections to the Commissioner’s report dated 18.11.2016 on the ground that the petitioner had not produced copies of the subject sale deeds for the examination of the Commissioner. After service of notice, the respondents have entered appearance through their counsel.
2. Having heard the learned counsel for the parties and having perused the petition papers, reprieve needs to be granted to the petitioners for the following reasons:
(a) the version of the Court below that the petitioners had not produced copies of the subject sale deeds cannot be a justification to the Commissioner for not accomplishing the task in terms of the order whereby he was appointed; a court Commissioner, it is a settled legal position, is nothing but an extended arm of the Court and therefore, he ought to have asked the court to instruct the parties to furnish copies of the sale deeds that are part of the record; and, (b) ideally speaking, petitioners, at whose instance the Commissioner came to be appointed ought to have produced the sale deeds of the properties in respect of which he has filed a counter claim in the injunctive suit; this they have not done is true; but nothing prevented the Commissioner from complaining to the Court as to the non- production of the sale deeds which are essential for accomplishing his task; in the absence of such documents, the report prepared and filed by the Court Commissioner can only be a truncated version and therefore would not throw light on the issue to be decided.
Thus, viewed from any angle, there is an organic error apparent on the face of the impugned order.
In the above circumstances, this writ petition is allowed in part; the impugned order is set at naught; the court below shall take immediate steps to have the exercise redone by the Commissioner after furnishing to him all the necessary title deeds of the stake holders.
It is made clear that, if the petitioners fail to furnish whatever documents they want to press into service before the Commissioner within four weeks.
Petitioners being partly responsible for the passing of the impugned order are liable to pay cost of Rs.10,000/- to the first respondent/plaintiff on or before the next hearing date of the suit or within one month whichever is later.
Failure to file the documents or to pay the cost as mentioned above, will result into automatic resurrection of the impugned order.
Petition disposed of.
PSG Sd/- JUDGE