IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P. NOs. 57964-965/2016 (GM-CPC) BETWEEN:
1. SRI. G. BABU RAO S/O LATE GOVINDA RAO AGED 48 YEARS 2. SRI. SATISH RAO S/O LATE GOVINDA RAO AGED ABOUT 44 YEARS BOTH ARE RESIDING AT NO.17/18, 8TH CROSS, KANTEERAVANAGARA STUDIO MAIN ROAD, NANDINI LAYOUT, BANGALORE 560096.
... PETITIONERS (BY SRI. JAGADEESHACHARI, ADVOCATE) AND:
1. SMT. NARASAMMA W/O LATE BETTAIAH AGED ABOUT 78 YEARS, 2. SRI. B. DEVARAJ S/O LATE BETTAIAH, AGED ABOUT 56 YEARS 3. B. VENKATESH S/O LATE BETTAIAH AGED ABOUT 40 YEARS ALL ARE R/A GORAGUNTEPALYA, KANTEERAVA STUDIO MAIN ROAD, PARIMALA NAGARA, BANGALORE 560022.
4. SMT NARASAMMA W/O PAPANNA D/0 BETTAIAH AGED 45 YEARS 5. SMT.SUSHEELAMMA W/O PUTTASWAMY, AGED ABOUT 28 YEARS 6. SMT. GOWRAMMA D/O BETTAIAH AGED ABOUT 35 YEARS 7. SMT. LAKSHMIDEVI D/O BETTAIAH AGED ABOUT 32 YEARS 8. SMT. KOMALAMMA D/O BETTAIAH AGED ABOUT 38 YEARS RESPONDENTS NOS. 4 TO 8 ARE R/AT NO.17/8, 8TH CROSS, KANTEERAVANAGARA STUDIO MAIN ROAD, NANDINI LAYOUT.
... RESPONDENTS (BY SRI. PARAMESHWAR N HEGDE, ADVOCATE FOR C/R1) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO GRANT AN INTERIM ORDER TO STAY THE OPERATION AND ALL FURTHER PROCEEDINGS IN PURSUANCE TO ANNEXURE-E DATED 04.10.2016 I.E., THE ORDERS ON I.A.NO.7 IN O.S.NO.2065/2006 ON THE FILE OF THE VII ADDL. CITY CIVIL JUDGE, BANGALORE CITY.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners who are defendants in O.S.No.2065/2006 have preferred these writ petitions challenging the order dated 04.10.2016 passed in O.S.No.2065/2006 by VII Addl.City Civil Judge, Bangalore whereunder application – I.A.No.7 filed under Order 26 Rule 9 CPC came to be allowed.
2. Plaintiffs have instituted the suit in question i.e., O.S.No.2065/2006 for mandatory injunction to direct the defendants to demolish/remove the existing structures. Plea raised in the plaint at paragraph 5 would disclose that a contention has been raised by the plaintiffs to the effect that defendants have encroached upon plaintiffs property to an extent of 13’ East to West and 65’ North to South and have constructed the buildings. On conclusion of trial, plaintiffs have filed an application – I.A.No.7 for appointment of a Court Commissioner to ascertain the factual position including carrying out measurement of the properties of plaintiffs and defendants. Trial Court on appreciation of rival contentions, opined that it would be necessary to appoint a Court Commissioner since it would enable it to arrive at a just and proper conclusion based on the report of the Court Commissioner and as such has allowed the application. Exercise of discretion to appoint a Court Commissioner under the impugned order passed by the trial Court cannot be found fault with. Writ petitions being devoid of merits, stands dismissed.
Petitioners would be at liberty to file objections to the Commissioner’s report and challenge the same in the manner known to law.
SD/- JUDGE *sp