IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.11043 OF 2017 (GM-CPC) BETWEEN:
SRI. PARAMESHWARAPPA S/O LATE BASAPPA AGED ABOUT 58 ;YEARS AGRICULTURIST R/AT NERALAKERE AMRUTHAPURA HOBLI TARIKERE TALUK – 577 102 (BY SMT. ANUSHA ASUNDI, ADVOCATE ... PETITIONER FOR SRI. A. MADHUSUDHANA RAO, ADVOCATE) AND:
SRI. N.G. RAJASHEKARAIAH S/O LATE GURUMUTHAIAH AGED ABOUT 48 YEARS AGRICULTURIST R/AT NERALAKERE AMRUTHAPURA HOBLI TARIKERE TALUK – 577 102 ... RESPONDENT (BY SRI.G. S. BHAT, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 22.02.2017 PASSED BY THE LEARNED CIVIL JUDGE AND ADDITIONAL JMFC, TARIKERE ON I.A.NO.8 IN O.S.NO.223/2012 AT ANNEXURE-E ALLOW THIS W.P. WITH COSTS AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a injunctive suit in O.S.No.223/2012 is invoking the writ jurisdiction of this Court for assailing the order dated 22.02.2012, a copy whereof is at Annexure-E, whereby his application in I.A.No.8 filed under Order XXVI Rule 9 r/w Section 151 of the Code of Civil Procedure, 1908, for appointing the Court Commissioner for the purpose of ascertaining the location of two tamarind trees in the suit property has been dismissed by the learned Civil Judge, Tarikere. After service of notice, respondent has entered appearance through his counsel and resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court declines to grant indulgence in the matter because the Court below having adverted to the earlier litigation between the parties in O.S.No.234/1992 and that later went in appeal in R.A.No.37/1996 has opined that there is sufficient material, to show the location of the said tamarind trees and that no report from the Commissioner is required.
3. The impugned order is a product of discretion, which the Court below has exercised in accordance with rules of reason and justice. Such orders, ordinarily are not susceptible to challenge in a limited writ jurisdiction under Article 227 of the Constitution of India vide Trimbak Gangadhar Telanga vs. Ramchandra Ganesh Bhide, AIR 1977 SC 1222.
In the above circumstances, the writ petition being devoid of merits is dismissed.
No costs.
Mds/-
Sd/- JUDGE