IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITON No.35404 OF 2014 (GM-CPC) BETWEEN:
1. VENKATEGOWDA S/O DODDABOKKEGOWDANA THIMMEGOWDA AGED ABOUT 45 YEARS 2. THIMMEGOWDA S/O DODDABOKKEGOWDANA THIMMEGOWDA SINCE DEAD BY HIS LRs 2(A) SMT SHOBHA W/O LATE THIMMEGOWDA AGED ABOUT 32 YEARS 2(B) KUMARI B.T.SUSHMITHA D/O LATE THIMMEGOWDA AGE: MINOR REP. BY PETITIONER NO.2(A) 2(C) B.T.ANIL KUMAR S/O LATE THIMMEGOWDA AGE: MINOR REP. BY PETITIONER NO.2(A) 3. KRISHNA S/O DODDABOKKEGOWDANA THIMMEGOWDA AGED ABOUT 30 YEARS ALL ARE AGRICULTURISTS OF K.BELLUR VILLAGE, KASABA HOBLI, MADDUR TALUK MANDYA DISTRICT – 571 433 …PETITIONERS (By SRI D.S.HOSMATH, ADVOCATE) AND SMT SHIVALINGAMMA W/O LATE THIMMEGOWDA AGED ABOUT 50 YEARS R/O K.BELLUR VILLAGE KASABA HOBLI MADDUR TALUK MANDYA DISTRICT – 571 433 … RESPONDENT (BY SRI H.C.SHIVARAMU, ADVOCATE) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order vide Annexure-‘E’ passed by the learned Principal Civil Judge & JMFC, Maddur, on I.A.No.10 in O.S.No.94/2004 dated 03.06.2014 and etc., This Writ Petition coming on for Preliminary hearing in ‘B’ group this day, the Court made the following:
ORDER The petitioners being the defendants in O.S.No.94/2004 are invoking the writ jurisdiction of this Court for assailing the order dated 03.06.2014 made by the learned Principal Civil Judge at Maddur, whereby their application in I.A.No.10 filed under Order 26 Rule 9 read with Section 151 of CPC for appointment of the Commissioner has been negatived. The respondent/plaintiff having entered an appearance through her counsel, opposes the writ petition.
2. Learned counsel for the petitioners argues that since there is a fair dispute as to boundaries of the property in question, the appointment of Commissioner would facilitate its due adjudication along with other material on record and since this aspect has not been adverted to by the trial Court, the impugned order is vulnerable. So arguing, he seeks allowing of the writ petition.
3. Learned counsel for the respondent-plaintiff, per contra contends that the question of entertaining the application when recording of evidence in the suit has not yet been accomplished, does not arise at all; if at all there is a need to appoint a commissioner, the request is to be made at the appropriate stage and therefore, the impugned order cannot be faltered. So contending, he seeks dismissal of the writ petition.
4. I have heard the learned counsel for the parties and I have perused the petition papers. This Court is of the considered opinion that the impugned order cannot be faltered inasmuch as the trial of the suit is not yet over; after the parties places on record all their evidence, the petitioners may be justified in making an application for appointment of the Commissioner which would be considered by the Court below in accordance with law.
In the above circumstances, the writ petition is disposed off without granting indulgence in the matter, however, reserving liberty to the petitioners to revive the request for appointment of Commissioner, after the trial of the suit is over.
Since the suit is about 15 years old, the request is made to the learned trial Judge to try and dispose of the same within an outer limit of one year.
All contentions are kept open. No costs.
Sd/- JUDGE KTY