IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S. DIXIT W.P.No.57256/2016(GM-CPC) BETWEEN:
SRI. K.G. SHANKARANANADA SON OF K.G. SURUSIDDAPPA AGED ABOUT 58 YEARS RESIDING AT AGRICULTURIST AND KIRANI MERCHANT NO.3341/1, H.B. COLONY M.C.C. ‘B’ BLOCK DAVANAGERE – 572 013.
(BY SRI. P.M. SIDDAMALLAPPA., ADVOCATE) AND:
1. SMT. REKHA G JAGADHISHAPPA S AGED ABOUT 46 YEARS.
2. SRI. JAGADHISHAPPA S SON OF M. SHARANAPPA AGED ABOUT 52 YEARS WORKING AT BAPUJI CO-OPERATIVE BANK, BIET BRANCH, ANJANEYA EXTENSION, DAVANAGERE.
BOTH ARE RESIDENTS OF NO.5476/23 8TH CROSS, SIDDAVEERAPPA LAYOUT, DAVANAGERE – 572 013.
(R-1 AND R-2 ARE SERVED) ... PETITIONER ... RESPONDENTS THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED:04.03.2016 AS PER ANNEXURE-G PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND J.M.F.C DAVANAGERE IN O.S.NO.194/2010 ON I.A.NO.VI FILED BY THE PETITIONER/PLAINTIFF.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner/plaintiff in O.S.No.194/2010 has invoked the writ jurisdiction of this Court for assailing the order dated 04.03.2016 made by the learned Trial Judge dismissing his application in I.A.No.VI filed under Order 26 Rule 10 CPC for appointment of Commissioner. After service of notice the respondents/defendants have chosen to remain unrepresented.
2. Learned counsel for the petitioner submits that although the earlier Commissioner has already filed his report in terms of the Court order, the objections thereto have been pressed into service by both the sides; the trial Court has not considered the said objections and therefore, it is not justified in dismissing a fresh application for appointment of another Commissioner; instead of dismissing, it ought to have deferred it’s consideration to the next stage.
3. I have heard the learned counsel for the petitioner and I have perused the Petition Papers.
4. The impugned order specifically mentions that the Commissioner appointed earlier has already filed his report. The plaintiff and defendants have filed their objections to the Commissioner’s report and these objections have not been considered as yet, by the Trial Court. The Court ought to have considered these objections and only thereafter should have taken up the petitioner’s application in I.A.No.VI, which is now rejected by it unjustifiably. This appears to be flawsome and therefore unsustainable.
5. In the above circumstance, this Writ Petition succeeds in part; the impugned order is set at naught; the learned trial judge shall consider the objections of the parties to the report of the Court Commissioner and only thereafter, shall take up petitioner’s application in I.A.No.VI for consideration, afresh.
No costs.
SD/- JUDGE RU