IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.52967 OF 2018 (GM-CPC) BETWEEN:
MR. STEPHEN WALTER MENDES S/O. LATE BASEL MENDES AGED ABOUT 48 YEARS RESIDING AT M/S MENDES CONSTRUCTION (P) LTD., MENDES CENTER MOODABIDRI – 574 227 ... PETITIONER (BY SRI RAJASHEKAR S., ADVOCATE) AND:
MR. JOHN SEEMON S/O. V.U. SEEMON AGED ABOUT 31 YEARS CLIFF DALE, KADRI HILLS MANGALURU – 575 004. ... RESPONDENT (BY SRI UDAYA PRAKASH MULIYA, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 21.10.2017 (ANNEXURE-A) PASSED BY THE COURT OF THE CIVIL JUDGE (JR.DVN.), MANGALORE ON I.A.NO.29 IN OS.NO.677/2005 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the defendant in the subject suit in O.S.No.677/2005, is invoking the writ jurisdiction of this Court for assailing the order dated 21.10.2017, a copy whereof is at Annexure – A, whereby the learned Principal Civil Judge, Junior Division, Mangaluru having favoured respondent-plaintiff’s application in I.A.No.29 filed under Order XXVI Rule 9 of CPC, 1908, has appointed a Commissioner for identifying and measuring the property in question. After service of notice, the respondent having entered appearance through his counsel 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 for the following reasons:
a) the suit is for injunctive relief; the same is resisted by the petitioner-defendant by filing Written Statement wherein at paragraph Nos.4 & 7, he has disputed about the location and extent of the subject property; where there is dispute as to the identity, location or measurement of area extent of the property ordinarily the Courts in their wisdom appoint Commissioner whose report become handy for adjudication of the lis;
b) the exercise to be undertaken by the Commissioner shall be with the participation of both the stakeholders and that parties are entitled to file memo of instructions as well; whether report would be favourable to the petitioner or to the respondent is not possible to assume at this juncture; that being so, the challenge to the appointment of the Commissioner is preposterous.
c) the impugned order being a product of exercise of discretion by the Court below is not available for challenge in the limited jurisdiction with the writ Court exercise under Article 227 of the Constitution of India as held by the Apex Court in the case of SADHANA LODH Vs. NATIONAL INSURANCE COMPANY & OTHERS 2003 (3) SCC 524, para 7.
In the above circumstances, this writ petition is disposed of without granting indulgence, however, keeping open all the contentions of the parties.
It is needless to mention that if the report goes adverse to the interest of the petitioner, it is open to him to file the objection, which the trial Court shall look into.
No costs.
Sd/- JUDGE KTY