IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.48566 OF 2019 (GM-CPC) BETWEEN:
SRI P.K.BASAVARAJAPPA S/O.P.K.KRISHNAPPA AGED ABOUT 60 YEARS AGRICULTURIST R/AT KUNAJA SHEDIGAR VILLAGE BELLUR POST NARASIMHARAJAPURA TALUK-577 201 ... PETITIONER (BY SRI G.S.BALAGANGADHAR, ADVOCATE) AND:
1. SRI SAJI S/O.A.C.TARIYAN AGED ABOUT 42 YEARS 2. SRI A.C.TARIYAN S/O.A.P.CHARIYA AGED ABOUT 67 YEARS 3. SRI NARAYANAN @ RAMAKRISHNA S/O.THIMMANAIKA AGED ABOUT 55 YEARS 4. SRI SHIVAKUMAR S/O.MANJANAIKA AGED ABOUT 42 YEARS 5. SRI JAGADESHA S/O.MANJANAIKA AGED ABOUT 47 YEARS 6. SRI SRINIVASA S/O.MUDDUPOOJARI AGED ABOUT 52 YEARS ALL ARE RESIDING AT KUNAJA, SHEDIGAR VILLAGE BELLUR POST NARASIMHARAJAPURA TALUK-577 201 ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 04.09.2019 (ANNEXURE-E) PASSED BY THE COURT OF THE LEARNED CIVIL JUDGE (JR.DN.) JMFC, N.R.PURA, CHIKKAMAGALURU DISTRICT ON IA.NO.9 IN OS.NO.88/2012 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in an injunctive suit in O.S.No.88/2012, is invoking the writ jurisdiction of this Court for assailing the order dated 04.09.2019, a copy whereof is at Annexure – E, whereby the Court below having favoured the respondents’ application filed under Order XXVI Rule 9 read with Section 151 of CPC, has appointed a Court Commissioner for ascertaining the existence of road in question.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to grant indulgence in the matter inasmuch as the Commissioner has appointed not for collecting the evidence but for the purpose of reporting the existence or otherwise of the road in question in the subject property.
3. The impugned is taken by the Court below in its discretion after looking to the evidentiary material placed on record; the Apex Court in the case of TRIMBAK GANGADHAR TELANGA vs. RAMACHANDRA GANESH BHIDE & OTHERS, AIR 1977 SC 1222, has held that discretionary orders are not to be reviewed by the Writ Court exercising limited jurisdiction under Article 227 of the Constitution of India subject to all just exception into which the case of the petitioner does not fit.
4. It is needless to mention that the report of the Commissioner shall be only for the purpose of ascertaining the existence of the road and nothing beyond that regardless of the text of the impugned order.
In view of the above, this writ petition is disposed off as being unworthy of consideration.
All contentions of the parties are kept open.
KTY Sd/- JUDGE