IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.No.36594/2017 (GM-CPC) BETWEEN SRI P.GOPALAKRISHNA RAO S/O LATE SATHYANARAYANA RAO, AGED ABOUT 83 YEARS R/AT PADUPANAMBOOR VILLAGE, HALEYANGADY POST, MANGALURUL TALUK 574 146.
REP BY HIS GPA HOLDER-SRI. SHREEKAR RAO, AGED ABOUT 42 YEARS, S/O. P. GOPALAKRISHANA RAO, R/AT PADUPANAMBOOR VILLAGE, HALEYANGADY POST, MANGALURU TLAUK 574146. ... PETITIONER (By Sri VIJAYAKRISHNA BHAT M., ADV.) AND SRI P.SATHISH RAO AGED ABOUT 61 YEARS S/O SATHYANARAYANA RAO R/O PADUPANAMBOOR VILLAGE, HALEYANGADY POST, MANGALURU TALUK 574 146. ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 17.7.2017 PASSED BY THE CIVIL JUDGE AND JMFC, MOODABIDRI IN O.S.102/2005 AT ANNEX-H AND CONSEQUENTLY ALLOW I.A.23 AS PRAYED FOR.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Order dated 17.07.2017 passed by the Court below rejecting I.A.No.XXIII filed by the defendant – petitioner herein in O.S.No.102/2005 is called in question in this writ petition. By the impugned order, the Court below has dismissed the application I.A.No.XXIII filed under Section 75(B) read with Section 151 CPC seeking appointment of a Court Commissioner to secure additional or supplementary report by measuring the suit properties including Sy.No.18/5P1 measuring 1 acre 59 cents and Sy.No.16/4 of Padupanambur Village of Karkala Taluk.
2. O.S.No.102/2005 has been filed by the respondent herein seeking a decree of permanent injunction to restrain the defendant – petitioner herein from trespassing into ‘A’ schedule properties and from tampering with the natural boundaries of ‘A’ schedule properties. Defendant has resisted the suit. An application was filed earlier by the plaintiff seeking appointment of Court Commissioner to measure the suit schedule properties and submit a report. The said application on contest was allowed. A report was submitted by the Court Commissioner. Petitioner - defendant has filed objections to the said report.
The matter is set down for evidence. At this stage, defendant files the present application I.A.No.XXIII seeking appointment of another Court Commissioner to measure the suit properties including Sy.No.18/5P1 and Sy.No.16/4 and to identify the existence of road in suit survey number and also in Sy.No.16/4. This application has been rejected by the Court below observing that one report had been already submitted by the Court Commissioner along with survey sketch and the applicant – petitioner herein had filed objections to the said report.
3. Matter was yet to be decided after recording evidence to find out whether the report could be treated as actual reflection of the situation on the spot with regard to the existence of road. Instead of leading evidence to substantiate his defence, petitioner has come up with the present application for appointment of another Court Commissioner. Therefore, the Court below has persuaded itself to reject the application. The Court below has also held that even in the present application the applicant had sought to identify the suit property and existence of the road in the suit property, but the dispute with regard to the alleged road and its non-existence had been already adjudicated in O.S.No.446/1987 and hence, the application could not be allowed.
4. Learned counsel for the petitioner submits that there was no impediment in law to entertain second application for appointment of another Court Commissioner for eliciting the actual position regarding existence of road and identification of the properties. He draws the attention of the Court to Order XXVI Rule 12(2) CPC to contend that where the Court has reason to be dissatisfied with proceedings and report of the Commissioner, then it may direct such further enquiry as it shall think fit which would include appointment of a fresh Court Commissioner.
5. Upon hearing the learned counsel for petitioner and on perusal of the materials on record, I find that the Court has not yet formed any opinion with regard to satisfaction or dissatisfaction regarding the report submitted by the Court Commissioner and the materials collected by the Court Commissioner. That stage is not yet reached. Parties have to now lead evidence. Once the evidence is led, the Court below will be in a position to apply its mind and find out whether the report deserves to be accepted as proof of assertion made by the plaintiff in the light of other materials available or not.
Hence, I do not find any infirmity in the impugned order passed by the Court below. Writ Petition is, therefore, dismissed.
Sd/- JUDGE PKS