IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.14111 OF 2015 (GM-CPC) BETWEEN:
SRI. G.B. MALLAPPA DEAD BY LRS.
1(a) SMT. GIRIJAMMA W/O LATE G.B. MALLAPPA AGED ABOUT 70 YEARS R/O GOWRAPURA VILLAGE AJJAMPURA HOBLI TARIKERE TALUK.
1(b) SRI. G.M. GIRISH S/O LATE G.B. MALLAPPA AGED ABOUT 57 YEARS TEACHER, R/O ‘SRI NILAYA’ T.C. ROAD, LINGADAHALLI VILLAGE & HOBLI, TARIKERE TALUK.
1(c) SRI. G.M. MANJUNATHASWAMY S/O LATE G.B. MALLAPPA AGED ABOUT 54 YEARS LECTURER R/O ‘SRI VENKATESHWARA NILAYA’ NEAR MALU SLEEPERS PVT. LTD. RAJAJINAGARA, BIRUR TOWN & HOBLI KADUR TALUK.
1(d) SRI. G.M. RAVI S/O LATE G.B. MALLAPPA AGED ABOUT 52 YEARS BUSINESSMAN, R/O NO.21 ‘SHARANYA’, 2ND MAIN, 2ND CROSS ANAPOORNESHWARI LAYOUT J.P. NAGAR, 7TH STAGE BANGALORE 560077.
1(e) SRI G.M. ANANDAMURTHY S/O LATE G.B. MALLAPPA AGED ABOUT 51 YEARS TEACHER R/O NO.19, MUNIRAJAPPA LAYOUT KOTTANURU POST, BANGALORE 560077.
1(f) SRI. G.M. MALLIKARJUNA S/O LATE G.B. MALLAPPA AGED ABOUT 46 YEARS CIVIL ENGINEER R/O GOWRAPURA VILLAGE AJJAMPURA HOBLI & POST TARIKERE TALUK.
(By Mr. G.S. BALAGANGADHAR, ADV., FOR LR’S OF PETITIONER 1(a – f)) AND:
SRI. G.B. MARULASIDDAPPA S/O LATE BASAPPA AGED ABOUT 76 YEARS OCC: AGRICULTURIST R/O GOWRAPURA VILLAGE AJJAMPURA HOBLI TARIKERE TALUK CHIKMAGALORE DISTRICT 377 201.
(By Mr. RUDRAIAH, ADV., FOR R1) - - -
… PETITIONERS … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDERS PASSED BY THE LEARNED CIVIL JUDGE (JR.DN.) TARIKERE IN O.S.NO.28/2009 I.E. REJECTING THE COMMISSIONER’S REPORT, VIDE ORDERS DATED 7.3.2015 VIDE ANNX-H AS THE SAME IS IMPUGNED, PERVERSE AND CAPRICIOUS AND IS LIABLE TO BE SET ASIDE AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.G.S.Balagangadhar, learned counsel for the petitioners.
Mr.Rudraiah, learned counsel for respondent No.1.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 07.03.2015 by which the Trial Court has rejected the report submitted by the Court Commissioner.
4. Facts giving rise to the filing of the petition briefly stated are that the petitioners had filed suit seeking the relief of permanent injunction as well as mandatory injunction. The defendants filed the written statement. Thereafter, the issues were framed. The Trial Court on application being filed by the respondent appointed a Court Commissioner. The Commissioner, after examination of the spot submitted a report. The Commissioner was examined before the Court and he was cross-examined by impugned order dated 07.03.2015, the Trial Court has rejected the report submitted by the Commissioner on the ground that the Commissioner appointed by the Court has acted beyond the scope of authority.
5. Learned counsel for the petitioners submitted that the report submitted by the Collector was a piece of evidence and the evidentiary value of the same was required to be considered by the Trial Court at the time of decision of the suit. On the other hand, learned counsel for the respondent submitted that since the Court Commissioner had traveled beyond the scope of his authority and it was an attempt to collect the evidence on behalf of the plaintiff. Therefore, the report has rightly been discarded by the Trial Court.
6. I have considered the submissions made by both the sides. Admittedly, on an application being filed by the respondent, the Commissioner was appointed by the Court. The Commissioner after the spot inspection has submitted the report. The Commissioner was produced before the Court and he was cross-examined by the petitionerd as well as the respondent. The report of the Commissioner is a piece of evidence and the Trial Court at the interlocutory stage of the suit could not have discarded the piece of evidence. The impugned order therefore, suffers from procedural irregularity. It is hereby quashed and set aside. Needless to state that the Trial Court shall consider the evidentiary value of the report submitted by the Court Commissioner at the time of final decision of the suit. Parties are also granted liberty to raise objections to the Commissioner’s report, which may be available to them under law and the Trial Court shall advert to the same before deciding the evidentiary value of the report submitted by the Court Commissioner.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS