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.51752 OF 2019 (GM-CPC) BETWEEN:
1 . SRI. CHANNAPPA SINCE DEAD BY LRS 1a. RADHAMMA W/O. LATE CHANNAPPA, AGED ABOUT 59 YEARS, 1b. M. C. MADHUBABU S/O. LATE CHANNAPPA, AGED ABOUT 32 YEARS, R/AT SHAKTHI NAGAR, PATALAMMA EXTENSION, MALUR TOWN, KOLAR - 563 130.
1c . SAVITHA. C D/O. LATE CHANNAPPA, AGED ABOUT 44 YEARS, R/AT: R.F. ROAD, PATALAMMA EXTENSION, MALUR TOWN, KOLAR - 563 130. ... PETITIONERS (BY SRI. SARAVANA.S, ADVOCATE) AND:
1 . SRI. V MUNISWAMY SINCE DEAD BY LRS SRI VENKATESH SINCE DEAD BY LR’S., 1 . SMT. VIJIYAMMA, W/O. LATE VENKATESH, AGED ABOUT 48 YEARS, 2 . KUM. SWETHA D/O. LATE VENKATESH, AGED ABOUT 32 YEARS, 3 . SRI. BHARATH S/O. LATE VENKATESH, AGED ABOUT 30 YEARS, 4 . SRI. BABU S/O. LATE VENKATESH, AGED ABOUT 28 YEARS, 5 . SRI. MUNIRAJU S/O. LATE V. MUNISWAMY, AGED ABOUT 50 YEARS, 6 . SRI. NARAYANASWAMY S/O. LATE V. MUNISWAMY, AGED ABOUT 48 YEARS, 7 . SRI. D. VENKATARONA S/O. LATE V. MUNISWAMY, AGED ABOUT 46 YEARS, ALL ARE RESIDING AT NEAR RAILWAY OVER BRIDGE, MALUR-HOSUR ROAD, MALUR-TOWN, KOLAR - 563 130.
8 . SMT. MANJULA D/O. LATE V.MUNISWAMY, AGED ABOUT 39 YEARS, NEAR RAILWAY AT NEAR RAILWAY FEEDER ROAD, SHAKTHI NAGAR, MALUR TOWN, KOLAR - 563 130.
9 . SRI. SEENAPPA AGED ABOUT 68 YEARS, S/O. CHANDRAPULLAPPA, BOTH ARE AGRICULTURISTS, RESIDING NEAR JSR SCHOOL, MALUR TOWN, KOLAR - 563 130. ... RESPONDENTS (BY SRI. VIGNESHWAR S.SHASTRI, ADVOCATE FOR C/R-6) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDERS AT ANNEXURE-D DTD.25.11.2019 PASSED IN O.S.NO.207/2011 IN RESPECT OF I.A.NO.32 ON THE FILE OF THE SENIOR CIVIL JUDGE MALUR AND CONSEQUENTLY ALLOW THE I.A.NO.32 TO THE W.P,; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the plaintiffs in a declaration & injunction suit in O.S.No.207/2011 are invoking the writ jurisdiction of this Court for assailing the order dated 25.11.2019, a copy whereof is at Annexure-D whereby the learned Senior Civil Judge, Malur having rejected their application in I.A.No.32 filed under Order XXVI Rule 9, r/w Section 151 of CPC, 1908 has refused to appoint Court Commissioner.
2. The 6th respondent-Narayanaswamy being the defendant, has entered caveat through his counsel and resists the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, including the papers presented by them through memo, this Court is of the considered opinion that the impugned order is unassailable.
This court is in full agreement with the reasoning of the Court below in para 7, which reads as under:
“7. The suit in OS No.207/2011 and OS No.225/2011 are clubbed together. Both the suits are filed by plaintiff seeking declaration of title and permanent injunction over the suit schedule properties. On perusal of the records available on record, it is noticed that, the evidence has been concluded on both sides. Both the parties have furnished several documents in order to prove their claim over suit schedule properties. Now at this stage, the plaintiff has filed this application seeking appointment of Court Commissioner to survey the entire property in Sy.No.245/1 and to fix the boundaries. The present suits are filed in the year 2011, but the dispute between the parties is pending since from decades. The evidence adduced by both parties and the documents furnished in both suits are very well sufficient for fair adjudication of the matter between parties. At the fag end of disposal of suit, the plaintiff has come up with present application seeking appointment of Court Commissioner in order to measure and the fix the boundaries, which is unwarranted and it will not be helpful any more in disposing the suits. The LRs of plaintiffs have also relied on the citations of Hon’ble Apex Court and Hon’ble High Court of Karnataka. With due respect to the said judgments, I am of the opinion that, since the evidence and documents on record are sufficient to dispose of the matters, the present application deserves to be dismissed.”
In the above circumstances, this Writ Petition being devoid of merits is rejected in limine.
Sd/- JUDGE DS