IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.44790 OF 2017 (GM-CPC) Between:
Sri. K.C.Lingaraja, S/o K.Channabasappa, Aged about 47 years, D.No.421/12, Anekonda, Opp. Mattikallu, Davanagere – 577 101.
(By Sri.Vighneshwar S.Shastri, Advocate) And:
Sri. J.Basavaraja, S/o Jadeyappa, Aged about 75 years, Business, D.No.421/11, Anekonda, Opp. Mattikallu, Davanagere – 577 101.
(By Sri.T.Basavaraj, Advocate) ... Petitioner ... Respondent This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order dated 1.8.2017 passed on IA No.XIV in O.S.No.540/2010 on the file of Principal Civil Judge at Davanagere as per Annexure-K.
This Petition coming on for “Preliminary Hearing in ‘B’ Group”, this day, the Court made the following:-
ORDER Petitioner being the plaintiff in a suit for decree of mandatory and permanent injunctions filed by the respondent in O.S.No.540/2010 is invoking the writ jurisdiction of this Court for assailing the order dated 01.08.2017 passed by the Learned Principal Civil Judge, Davangere on respondent-plaintiff’s I.A.No.XIV filed under Order XXVI Rule 9 of CPC, 1908 seeking appointment of a Court Commissioner for visiting the spot and submitting the report. After service of notice, the respondent having entered appearance through his counsel, resists the Writ Petition.
2. The learned counsel for the petitioner finds fault with the impugned order arguing that there is an error apparent on the face of record; and there is sufficient evidentiary material on record to decide about the state of the subject properties without the report of the Commissioner and therefore, there was absolutely no need for appointment of Commissioner at all. So arguing, he seeks allowing of the Writ Petition.
3. Per contra, learned counsel for the respondent points out from the deposition of the petitioner himself dated 08.07.2015 a copy whereof is at Annexure-G wherein he has signified his ‘No objection’ for appointment of the Commissioner; now he cannot turn around and lay a challenge to the order in question. So contending, he seeks dismissal of the Writ Petition.
4. Having heard learned counsel for the parties and having perused the Petitioner Papers, this Court declines to interfere in the matter because:
i) the impugned order is made after recording of the evidence and after looking into the evidence on the board; it is a product of exercise of discretion and wisdom of the court below in the facts of the case;
ii) the petitioner in his cross examination dated 01.09.2015 has specifically stated as under:
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iii) it is a settled legal position that a litigant who takes a particular stand in the lis, and allows the same to be acted upon by the Court, later it is not to open to him to turn around and lay a challenge thereto or contend to the contrary.
In the above circumstances, Writ Petition being devoid of merits, stands dismissed.
It is needless to mention that the Court below before acting upon the said report of the Commissioner shall afford an opportunity of hearing to both the stake holders in the matter. The Court shall also keep in view whether both the parties have not left the set back as required by the Rule and decide as to how equity needs to be worked out.
Request is made to the learned judge to dispose of the suit within an outer limit of nine months.
Costs made easy.
Sd/- JUDGE DS