Partly allowed

Ashfak Shafi Ahamed v. Mohammed Sab Chand Sab Mangaluru

Karnataka HC8 Feb 2019WP/103761/2018

Case brief

AI extract

What is this about?

This High Court Writ Petition concerning a civil suit rejected an interlocutory application for a Commissioner's appointment under Order 26 Rule 9 CPC. The Court affirmed the rejection but reserved liberty for the petitioner to revive the application after evidence recording.

What did the court decide?

Rejection of I.A. No.3 affirmed, but liberty reserved to revive application after completion of recording of evidence.

Ashfak Shafi Ahamed Vs Mohammed Sab Chand Sab Mangaluru — Property and Title | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF FEBRUARY 2019

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BEFORE

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THE HON’BLE MR. JUSTICE G.NARENDAR

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WRIT PETITION NO.103761/2018 (GM-CPC)

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BETWEEN

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ASHFAK SHAFI AHAMED AGED ABOUT: 33 YEARS, R/O: MUSLIM GALLI, SIRSI, REPRESENTED BY HIS GPA HOLDER, IJAJ AHAMED AKBHAR SAB BILIGI, AGED ABUT: 41 YEARS, R/O: MUSLIM GALLI, SIRSI, UTTARA KANNADA DISTRICT.

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... PETITIONER

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(BY SRI.S.G.KADADAKATTI, ADV.)

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AND

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MOHAMMED SAB CHAND SAB MANGALURU AGED ABOUT: 42 YEARS, OCC: BUSINESS, R/O: KASABA KARIGUNDI ROAD, NEHERU NAGAR, SIRSI, UTTARA KANNADA DISTRICT.

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... RESPONDENT

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE LOWER COURT IN O.S. NO.334/2006, ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND III ADDITIONAL JMFC, COURT SIRSI AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard the learned counsel for the petitioner

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Petitioner is before this Court being aggrieved by the order passed by the Court of the II Additional Civil Judge and III Additional JMFC, Sirsi in O.S. No.334/2016 dated 03.04.2018, whereby the Trial Court has been pleased to reject the interlocutory application I.A. No.3 preferred by the plaintiff under Order 26 Rule 9 of CPC seeking appointment of a Commissioner for local inspection to ascertain the extent of encroachment. The Trial Court while rejecting the application has relied on the ruling of this Court in Miss Renuka V. Tammana and others reported in ILR 2007 KAR 3029 and has placed reliance on the observations of this Court, as set out in paragraph 7 of the said judgment.

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There can be no quarrel with the proposition that has been set out by the Co-ordinate Bench of this Court. It is settled law that the appointment of Commissioner under the provision of Order 26 Rule 9 of

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CPC cannot be an exercise in collecting evidence. Hence, the rejection by the Trial Court at the present stage cannot be faulted with. But it also remains a fact that by merely rejecting the application and not permitting the applicant to revive such an application at a later stage in the event of any ambiguity even after the Trial, in the opinion of this Court, is an error committed by the Trial Court.

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In that view of the matter, the order impugned stands modified. The rejection of the I.A. No.3 is affirmed. But at the same time, it is just and necessary to reserve liberty to the petitioner to revive the application in the event the petitioner so desires after the completion of recording of evidence.

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With the above observations, the petition stands disposed off.

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Sd/JUDGE

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Rsh

Ashfak Shafi Ahamed v. Mohammed Sab Chand Sab Mangaluru

Case brief

What is this about?

What did the court decide?

Ashfak Shafi Ahamed v. Mohammed Sab Chand Sab Mangaluru

Case brief

What is this about?

What did the court decide?

What the court decided

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