IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NO.24403 OF 2019 (GM-CPC) BETWEEN SHRI.T.JAYARAM, S/O LATE SHRI.THIMMEGOWDA, AGED 62 YEARS, OCC: RETD. RAILWAY STATION MASTER, RESIDING AT NO.154/06, LOKANAYAKA NAGAR, 1ST MAIN, HEBBAL, MYSORE-570 001. ... PETITIONER (BY SRI.G.S.BHAT, ADVOCATE) AND 1. T.SRINIVASA, S/O LATE THIMMEGOWDA, AGED 60 YEARS, RESIDING AT 135/1, KUMBARANA KOPPALU, MYSORE-570 016.
2. N.ASHOKA, S/O T.NAGARAJU, AGED 41 YEARS, RESIDING AT NO.4-C, CANARA BANK ROAD, BRUNDAVAN EXTENSION, MYSORE-570 016.
3. T.KRISHNA, S/O LATE THIMMEGOWDA, AGED 53 YEARS, RESIDING AT NO.6, ‘R’ BLOCK, 60 FEET ROAD, KUMBARANA KOPPALU, MYSORE-570 016.
4. T.NAGAMMA, W/O NARASE GOWDA, AGED 57 YEARS, RESIDING AT CHAMUNDESWARI NAGAR, MANDYA-570 001.
5. ASHA.N, W/O RAMAKANTH, AGED 45 YEARS, RESIDING AT NO.4-C, CANARA BANK ROAD, BRUNDAVAN EXTENSION, MYSORE-570 016.
6. ANITHA.N, BUILDERS & DEVELOPERS, W/O ARUN KUMAR, AGED 41 YEARS, RESIDING AT NO.10, LOKANAYAKA NAGAR, 1ST MAIN, HEBBAL, MYSORE-570 001.
7. SHIVAMALLAPPA, S/O PUTTASWAMAPPA, AGED 50 YEARS, RESIDING AT NO.154/09, LOKANAYAKA NAGAR, 1ST MAIN, HEBBAL, MYSORE-570 001.
8. GOVIND SINGH, S/O KISSAN SINGH, AGED 51 YEARS, KUMBARANA KOPPALU, MYSORE-570 016.
9. PUTTAMALLA, S/O LATE JAVARAIAH, AGED 57 YEARS, WORKED IN VIKRAM TYRES LTD., NO.154/17, LOKANAYAKA NAGAR, 1ST MAIN, OPPOSITE BOMMURAMAMMA TEMPLE, HEBBAL, MYSORE-570 001. ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS IN O.S.NO.162/2014 (OLD O.S.NO.345/2010) PENDING BEFORE THE JUDGE, ADDITIONAL COURT OF SMALL CAUSES, MYSORE AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the plaintiff in a declaration suit in O.S.No.162/2014 (Old O.S.No.345/2010) is knocking at the doors of writ court seeking to lay a challenge to the order dated 30.03.2019, a copy whereof is at Annexure – A, whereby the learned Judge of Addl. Court of Small Causes, Mysore has dismissed his application in I.A.No.XX filed under order XXVI Rule 9 r/w section 151 of CPC, 1908, for appointment of a Court Commissioner.
2. Learned counsel for the petitioner argues that regard being had to the nature of the dispute and the issue framed in the suit, a report from the Commissioner for demarcating the subject property is imminently desirable; court below failed to see that such a report would have come handy for adjudication of the lis and that no prejudice would be caused to the other side by adopting such a course; all this having not been considered, constitutes an error apparent on the face of the record, warranting indulgence of this court.
3. Having heard the learned counsel for the petitioner and having perused the Petition Papers, this court declines to interfere in the matter on the following grounds:
(i) the pleadings of the parties being complete and recording of the evidence having been accomplished, the petitioner has filed the subject application; the court below have found the application and supportive affidavit to be purposeless and bad for vagueness; why at all the property needs to be measured when already admittedly the durasti work has been completed on 20.03.2006 by the ADLR, Mysore; and, (ii) the issues framed in the suit do not leave any scope for the dispute as to the identity of the property especially when both the sides have lead both oral and documentary evidence; no Commissioner can be appointed or the collection of evidence, is by now a well established legal position; this reasoning of the court below cannot be faltered.
In the above circumstances, Writ Petition being devoid of merits, stands rejected.
All contentions of the parties are kept open.
Sd/- JUDGE cbc