IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.57581 OF 2018 (GM-CPC) BETWEEN:
1. SRI. N. VENKATASWAMY - DEAD BY LR’S 1.a) SMT. MUNITHAYAMMA W/O LATE N. VENKATASWAMY AGED ABOUT 55 YEARS R/A DASARAHALLI VILLAGE VIJAYAPURA HOBLI DEVANAHALLI TALUK-562135.
1.b) SMT. MANJULA D/O LATE N. VENKATASWAMY W/O R. MUNIVENKATAPPA AGED ABOUT 35 YEARS R/A ARASANAHALLI VILLAGE SULIBELE HOBLI HOSKOTE TALUK-562114.
1.c) SMT. SUJATHA D/O LATE N. VENKATASWAMY W/O M. NAGESH AGED ABOUT 32 YEARS R/AT NO.202 KANAKADASA STREET KALKERE, HORAMAVU POST BENGALURU-560043.
… PETITIONERS (BY SRI. GOPI KRISHNA M.R. ADV.) AND:
1. THE CHIEF SECRETARY STATE OF KARNATAKA VIDHANA SOUDHA BANGALORE-560001.
2. THE DEPUTY COMMISSIONER CHICKBALLAPUR DISTRICT CHICKBALLAPUR-562101.
3. THE COMMISSIONER DISTRICT SOCIAL WELFARE OFFICE SHETTIHALLI EXTENSION M G ROAD, CHICKBALLAPUR-562101.
4. SRI H R CHANDRAPPA-DEAD BY LR’S 4.a) SMT. PALAKSHMAMMA W/O LATE CHANDRAPPA AGED ABOUT 65 YEARS R/A HULIKUNTE VILLAGE DODDABALLAPUR TALUK-562103.
4.b) SMT. GANGAMBIKA W/O PRAKASH AGED ABOUT 45 YEARS R/A HULIKUNTE VILLAGE DODDABALLAPUR TALUK-561203.
4.c) SMT. SHOWBAGHYA W/O NAGARAJ AGED ABOUT 42 YEARS R/A IN FRONT OF MARAMMA TEMPLE MELUKOTE VILLAGE DODDABALLPUR TALUK-561203.
4.d) SMT. PUTTAMMA D/O LATE CHANDRAPPA AGED ABOUT 40 YEARS R/A DABASPETE NELAMANGALA TALUK BANGALORE RURAL DISTRICT-562123.
5. SRI. NAGARAJA S/O LATE DODDAMUNISHAMAPPA AGED ABOUT 55 YEARS R/AT BEHIND VANI TALKIES CHICKBALLAPUR-562101.
6. SRI. MUNIYAPPA S/O LATE DODDAMUNISHAMAPPA AGED ABOUT 53 YEARS R/A BEHIND VANI TALKIES CHICKBALLAPUR – 562 101.
7. SRI. BASAVARAJU S/O PRAKASH AGED ABOUT 50 YEARS R/A HULIKUNTE VILLAGE DODDABALLAPUR TALUK – 561 203.
… RESPONDENTS (By Mr. M.A. SUBRAMANI, HCGP FOR R1 TO R3) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 14.12.2018 ON I.A.NO.20 PASSED BY THE HON'BLE CIVIL JUDGE (SR.DIV) CHICKBALLAPUR IN O.S.NO.38/2010 AT ANNEXURE-A, AND CONSEQUENTLY ALLOW THE APPLICATION IA NO.20 FILED BY THE PETITIONER UNDER ORDER 26 RULE 9 OF C.P.C.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr. M.R. Gopi Krishna, learned counsel for the petitioner.
Mr.M.A. Subramani, learned HCGP for respondent Nos.1 to 3.
2. Heard on the question of admission.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 14.12.2018 by which application field by the petitioner under Order XXVI Rule 9 of the Civil Procedure Code, (hereinafter referred to as ‘the Code’ for short) has been rejected.
4. Facts giving raise to the filing of the petition are that the petitioner had filed a suit seeking the relief of declaration and mandatory injunction. In the plaint it was inter alia pleaded that the respondent No.3 has encroached 12 guntas of land towards eastern side and is trying to raise construction towards the boundary wall. The suit was filed in the year 2010. the respondent No.3 filed the written statement on 06.07.2010. Thereafter, the parties led evidence and the case was fixed for final arguments. On the aforesaid stage of the suit, the petitioner filed an application under Order 26 Rule 9 seeking appointment of the Commissioner. The Trial Court by impugned order has rejected the aforesaid application.
5. Learned counsel for the petitioner submitted that the appointment of the Commissioner was necessary in order to ascertain the dispute involved in the suit.
6. I have considered the submissions made by learned counsel for the parties and have perused the record. The impugned order passed by the Trial Court neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of its powers under Article 227 of the Constitution of India. Even otherwise, it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385 and ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423] 7. Admittedly, the proceeding in the suit is fixed for delivery of judgment on 05.01.2019. Therefore, at this stage I am not inclined to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India which even otherwise are discretionary in nature. However, the Writ Petition is disposed of with a liberty to the petitioner to assail the order dated 14.12.2018 in an appeal if occasion so arises.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS