IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.50311 OF 2019 (GM-CPC) BETWEEN:
1 . SRI. VENKATESH S/O D NARAYANAPPA, AGED ABOUT 59 YEARS, 2 . SRI. SRINIVAS, S/O D NARAYANAPPA, AGED ABOUT 44 YEARS, BOTH RESIDENTS OF JATHAVARAHOSAHALLI, NANDI HOBLI, CHICKBALLAPUR TALUK.
(BY SRI. SHARATH GOWDA G B, ADVOCATE) AND:
SRI. L.MUNIREDDY, S/O DODDALAKSHMAIAH, AGED ABOUT 57 YEARS, RESIDENT OF JATHAVARAHOSAHALLI, NANDI HOBLI, CHICKBALLAPUR TALUK.
... PETITIONERS ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED 27.09.2019 PASSED BY THE PRINCIPAL CIVIL JUDGE AT CHICKBALLAPUR ON THE INTERIM APPLICATION UNDER ORDER XXVI RULE 9 R.W. SECTION 151 OF THE CPC IN O.S.NO.465/2010 PRODUCED AS ANNEXURE-A; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARIANG THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the defendants in a declaration suit in O.S.No.465/2010, are invoking the writ jurisdiction of this court for assailing the order dated 27.09.2019, a copy whereof is at Annexure-A, whereby the learned Principal Civil Judge, Chikkaballapur, having favoured respondent/plaintiff’s application filed under Order XXVI Rule 9 r/w section 151 of CPC, 1908, has appointed Commissioner for identifying and measuring the subject property.
2. The petitioners are not entitled to invoke the writ jurisdiction of this court for challenging the subject order inasmuch as in their detailed Written Statement, a copy whereof is at Annexure – D, they have disputed the very existence of the property itself; in such a case, appointment of Commissioner is not only desirable but inevitable.
3. The other contention of the petitioners that there are certain survey documents which respondent/plaintiff himself has placed before the court and therefore, the order of the kind could not have been made is unacceptable especially when the said documents are disputed by the petitioners.
4. The other ground for non-granting indulgence is that the impugned order is almost innocuous; the Commissioner after verifying the factuals, may submit a report that may support the case of the petitioners as well; if the report goes adverse to their interest, the petitioners are entitled to register their objections thereto, which the Court below shall consider objectively.
In the above circumstances, this Writ Petition is disposed off however, this order shall not come in the way of parties submitting Memo of Instructions to the Commissioner through the medium of Court.
Sd/- JUDGE DS