IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.375 OF 2017 (GM-CPC) BETWEEN:
1. SMT. SUBBALAKSHMAMMA D/O LATE C.MUTTHUSWAMY GOUNDER, W/O PUNNUSWAMY GOUNDER, AGED ABOUT 62 YEARS, K.S.DODDI VILLAGE, KOTTHNUR POST, PALYA HOBLI, KOLLEGALA TALUK.
2. SMT. SHASHIKALA W/O BALA DANDAPANI, AGED ABOUT 46 YEARS, R/AT NO.71/B, AYYAN NAGAR, MAGALAM ROAD, TIRPUR, TAMIL NADU. ... PETITIONERS (BY SRI. BHASKAR. Y, ADVOCATE) AND:
1. SRI K.S.ARUKUTTI S/O LATE SANNI MALAI GOUNDER, AGED ABOUT 60 YEARS, 2. SMT. LAKSHMI W/O K.S.ARUKUTTI, AGED ABOUT 55 YEARS, BOTH ARE RESIDING AT THOTADA MANE, PRAKASH PALYA, PALYA HOBLI, KOLLEGALA TALUK. ... RESPONDENTS (BY SRI. J.S. SOMASHEKAR, ADVOCATE FOR R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OR SET ASIDE THE IMPUGNED ORDER DTD:07.12.2016 PASSED ON IA NO.2 FILED U/O XXVI RULE 9 R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE (ANNEXURE-G) PASSED BY THE ADDL. CIVIL JUDGE AND JMFC KOLLEGAL IN O.S.NO.125/2016 AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the plaintiffs in a suit for declaration & injunction in O.S.No.125/2016 are invoking the writ jurisdiction of this Court assailing the order dated 07.12.2016, a copy whereof is at Annexure-G, whereby, the Court below has appointed a Court Commissioner for conducting spot inspection of the suit property and to submit the report thereon. After service of notice, the respondent- defendants have entered appearance through their counsel and resist the Writ Petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, the impugned order is sustainable because the application is moved by the respondent-defendants under Order XXVI Rule 9 of CPC, without filing the Written Statement. In the absence of the Written Statement, the stand of the respondents as to the plaint averments is difficult to ascertain. Ordinarily, filing of Written Statement is a pre-condition for filing an application for appointment of Commissioner subject to all just exceptions.
In the above circumstances, this Writ Petition succeeds; the impugned order is set at naught.
However, it is open to the respondents to seek appointment of Commissioner after filing of the Written Statement and if there exists any ground therefor.
All contentions of the parties are kept open. Costs made easy.
Sd/- JUDGE DS