IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.40105/2017(GM-CPC) BETWEEN:
SRI. SUJITH ROSARIO, S/O SRI. EDWARD ROSARIO, AGED ABOUT 38 YEARS, SUNKADAKATTE HOUSE, POST: BAJPE-574 142, MANGALURU TALUK, D.K. DISTRICT. ... PETITIONER (BY SRI CHANDRANATH ARIGA K., ADVOCATE) AND:
1. MR. EDWARD ROSARIO, S/O LATE MR. J.S. ROSARIO, AGED 70 YEARS, DODDUPALKE HOUSE, POST: PADUPERAR VILLAGE 574 142. MANGALURU TALUK, D.K. DISTRICT.
2. MR. RIKSON D’ SILVA, S/O EVEREST D’ SILVA, AGED ABOUT 24 YEARS, DODDUPALKE HOUSE, POST: PADUPERAR VILLAGE 574 142. MANGALURU TALUK, D.K. DISTRICT. ... RESPONDENTS … THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 13.4.2017 IN O.S.NO.1474/2015 PASSED BY THE V ADDITIONAL CIVIL JUDGE AND JMFC., MANGALURU, D.K. (ANNEXURE-E).
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner-defendant No.1 has filed the present writ petition against the order dated 13th April, 2017 made in O.S.No.1474/2015 dismissing the application - I.A.No.3 filed under Order 26 Rule 9 of the Code of Civil Procedure, 1908 on the file of the V Additional Civil Judge and JMFC., Mangaluru.
2. Respondent No.1, who is the plaintiff before the trial Court filed a suit for permanent injunction restraining the defendants, their men, servants, agents or any one claiming through under them from tress passing into any portion of plaint schedule property or causing any acts of wastes or damages to the plaint schedule property or in any manner interfering with his peaceful possession and enjoyment of the suit property morefully described in the schedule to the plaint. It was contended in the suit that he was the owner and in possession of the suit schedule property; The defendants have no manner of right, title or interest in the suit schedule property. The petitioner-defendant No.1 filed the written statement denying the entire plaint averments and contended that the suit filed by the plaintiff-respondent No.1 is not maintainable. He also filed the counter claim contending that since after blockage of the only approach road to his property on 9.11.2015 and on the assurance given by the plaintiff- respondent No.1 to him that he would remove the blockade clandestinely, the plaintiff- respondent No.1 has approached this Court denying the existing approach road to his property by misusing the Court process. Hence, he having no other alternative and efficacious remedy, he has filed the counter claim for grant of decree for mandatory injunction to remove the obstruction to the road approach and also consequential decree of permanent prohibitory injunction restraining the plaintiff- respondent No.1 his men, servants of other persons claiming through or under the plaintiff for interfering the use of the approach road in plaint schedule property by the defendant.
3. When the matter was posted for framing of issues, before commencement of trial, petitioner- defendant No.1 filed an application under Section 75, Order XXVI Rule 9 of the Code of Civil Procedure for appointing an Advocate Commissioner to hold local inspection and to report the same. Reiterating the averments made in the written statement/counter claim, the same was objected to by the plaintiff by filing objections.
4. The trial Court considering the application and the objections, by the impugned order dated 13.4.2017 dismissed the application filed by defendant No.1-petitioner. Hence, the present writ petition is filed for the relief sought for.
5. I have heard the learned Counsel for the petitioner.
6. Sri K. Chandranath Ariga, learned Counsel for the petitioner vehemently contended that the impugned order passed by the trial Court rejecting the application for appointment of Court Commissioner is erroneous and contrary to the material on record. He further contended that the very existence or otherwise of a road and its course is to be noted by the Commissioner. Since there is a specific claim made by defendant No.1- petitioner in the written statement along with counter claim that the plaintiff-respondent No.1 herein has blocked the existing road on 9.11.2015 and subsequently he has filed the suit suppressing the same, the learned Counsel submits that appointment of Court Commissioner is required to resolve the dispute between the parties. Therefore, he sought to quash the impugned order passed by the trial Court by allowing the present writ petition.
7. Having heard the learned Counsel for the petitioner, it is not in dispute that the plaintiff- respondent No.1 has filed the suit for permanent injunction in respect of the suit schedule property contending that he is in possession and enjoyment of the suit schedule property and defendants have no manner of right, title and interest in the suit schedule property. Defendant No.1-petitioner has filed the written statement denying the plaint averments and also have filed the counter claim contending that the plaintiff - respondent No.1 had given an assurance to remove the blockade but instead of that, he has filed the suit denying the existence of approach of road. Therefore, he has filed the counter claim for grant of mandatory injunction to remove the obstruction to the road approach. When the allegation made in the plaint that there is no road as alleged by the plaintiff- respondent No.1 herein and there is a road as alleged in the counter claim by defendant No.1-petitioner herein, the same has to be adjudicated after trial between the parties after adducing and producing both oral and documentary evidence on record.
8. Admittedly, in the present case, the evidence has not yet commenced. Before commencement of evidence, the present application is filed by defendant No.1-petitioner herein for appointment of advocate as Court Commissioner to identify the plaint schedule property – the road and traces of road in respect of plaint schedule property, which is nothing but amounting to collection of evidence and the same should not be encouraged. It is for both the parties to establish their independent claim based on the evidence after adducing and producing both oral and documentary evidence and when that stage has not yet reached, the present application was filed.
9. The trial Court considering the entire material on record, relying upon the decision of this Court in the case of Mohammed Kalngar –vs- Shailesh Kumar in Writ Petition No.4705/2015 wherein it has been held that in a suit for injunction, for the purpose of identifying the property, a Court Commissioner cannot be appointed as it amounts to collection of evidence. It has also observed that the parties to the case have to prove their contention by placing cogent documents and convincing evidence. As the trial is yet to be commenced and the parties to the suit are yet to lead their evidence, at this stage, it is of the opinion that in a suit for injunction, appointment of Court Commissioner is not required as it amounts to collection of evidence which is not permissible under law. Accordingly, the trial Court dismissed the application filed by defendant No.1- petitioner herein.
10. Though the learned Counsel for the petitioner, Sri K. Chandranath Ariga contended that the counter claim made by the petitioner –defendant No.1 was not considered by the trial Court while passing the impugned order, ultimately both the plaintiff and defendants are fighting for existence of road or non existence of road which has to be adjudicated only after full fledged trial. Therefore, the impugned order passed by the trial Court dismissing the application is in accordance with law.
11. In view of the aforesaid reasons, the petitioner has not made out any ground to interfere with the impugned order passed by the trial Court in exercise of writ jurisdiction under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
Sd/- Judge Nsu/-