IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8th DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.33283 OF 2018 (GM - CPC) BETWEEN:
SRI. VENKATESHAPPA, S/O VENKATAPPA, AGED ABOUT 60 YEARS, R/O KALLANDUR VILLAGE, KASABA HOBLI, TALUK AND DISTRICT: KOLAR – 563 101.
(BY SRI.RAMA KRISHNA HEGDE, ADV. FOR SRI. VEERANNA G TIGADI, ADV.) AND:
1. SMT. NARAYANAMMA, W/O SONNAPPA, AGED ABOUT 64 YEARS, R/O CHUCHANDENAHALLI, VOKKALERI HOBLI, TALUK AND DISTRICT: KOLAR.
2. SRI. KRISHNAPPA, S/O ARASAPPA, AGED ABOUT 58 YEARS, R/O KALLANDURU, KASABA HOBLI, KOLAR TALUK – 563 101.
3. SMT. PARVATHAMMA, S/O RAMAPPA, AGED ABOUT 48 YEARS, MANGASANDRA VILLAGE, VOKKALERI HOBLI, TALUK AND DISTRICT:KOLAR – 563 101.
… PETITIONER 4. RAMAPPA, S/O ARASAPPA, AGED ABOUT 45 YEARS, R/O CHANNALLURU VILLAGE, TALUK:MALUR, DISTRICT:KOLAR – 563 130.
5. SMT. GANGAMMA, W/O LATE ARASAPPA, AGED ABOUT 78 YEARS, KALLANDUR VILLAGE, KASBA HOBLI, TALUK AND DISTRICT: KOLAR – 563 101.
6. SRI. G.NARAYANA SWAMY, S/O GANGAPPA, AGED 48 YEARS, 7. SRI.N.PILLAPPA, S/O MUNIVENKATAPPA, AGED ABOUT 43 YEARS, 8. SRI.MUNIVENKATAPPA, S/O LATE VENKATAPPA, AGED ABOUT 50 YEARS, 9. SRI.K.R.SRINIVAS, S/O RAMAPPA, AGED 43 YEARS, 10. SRI.N.KRISHNAPPA, S/O LATE NARAYANAPPA, AGED ABOUT 63 YEARS, (RESPONDENTS 6 TO 10 ARE RESIDING AT KALLANDURU VILLAGE, KASBA HOBLI, TALUK AND DISTRICT: KOLAR – 563 101.
… RESPONDENTS (BY SRI.M.NARAYANA REDDY, ADV. FOR C/R1, R2, R4 TO R10 (CP NO.6997/18)) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER ON I.A. UNDER ORDER 26 RULE 9 CPC, DATED 05.07.2018 IN REGULAR APPEAL NO.73/2018 PASSED BY THE LEARNED I ADDITIONAL SENIOR CIVIL JUDGE, KOLAR AT ANNEXURE – D AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri.Rama Krishna Hegde, Advocate for Sri. Veeranna.G.Tigadi, Advocate for petitioner. Sri.M.Narayana Reddy, Advocate for Caveator respondents 1, 2, 4 to 10.
Taking into account the order which this Court proposes to pass, it is not necessary to issue notice to the other respondents.
2. Heard on the question of admission with the consent of the learned counsel for the parties, finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 05.07.2018 in Regular Appeal No.73/2018 passed by the I Additional Senior Civil Judge, Kolar, by which the application filed by the petitioner under Order XXVI Rule 9 of Code of Civil Procedure, 1908 (hereinafter referred as the ‘Code’ for short) has been dismissed.
4. The facts giving raise to the filing of this appeal briefly stated are that the petitioner has filed a suit seeking declaration of his title to the suit schedule property and consequential relief of permanent injunction. The aforesaid civil suit was dismissed by the Trial Court. Being aggrieved, the petitioner has filed an appeal before the Appellate Court which is pending in the aforesaid appeal. The petitioner has filed an application for amendment of the plaint which is yet to be considered. Thereafter the petitioner has filed an application under Order XXVI Rule 9 of the Code for appointment of the Commissioner for local investigation to note the houses constructed in the suit item No.1 and to fix its boundary and to submit report with sketch locating the said construction. The aforesaid application has been rejected by the Appellate Court.
5. The learned counsel for the petitioner submitted that the appointment of the Court Commissioner is necessary for fair and complete adjudication of the controversy involved in the suit.
6. On the other hand, the learned counsel for the respondents has supported the order passed by the Appellate Court.
7. I have considered the submission made by the learned counsel for the parties and have perused the record. From the perusal of the record it is evident that the Appellate Court has held that though the suit was filed on 15.04.2009, yet in the plaint there is no averment as to when the houses in question were constructed. The Appellate Court has therefore held that by mere noting the existence of houses and their correct location, would not assist the Court to agitate the controversy involved in the case. The suit is for the relief of declaration and permanent injunction. The petitioner has filed the application at the earliest stage without assigning cogent reasons. The Appellate Court has rightly rejected the same. The same does not suffer from any error apparent on the face of the order nor any jurisdictional infirmity warranting interference of this Court in exercise of the powers under Article 227 of the Constitution of India.
Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423]. In the instant case the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution.
8. In view of the said analysis, I do not find any merit in the writ petition. The same fails and is hereby dismissed.
Sd/- JUDGE rs