Dismissed

Smt. a N Kasthuri v. Smt. Neena Hegde

Karnataka HC11 Jun 2020WP/30799/2019

Case brief

AI extract

What is this about?

In a Writ Petition under Article 226, High Court of Karnataka dismissed the petition assailing an order dismissing a plaint application for an ex parte commissioner under Order XXVI Rule 9 CPC. The court held the trial court did not err in rejecting the application as it would amount to premature evidence collection.

What did the court decide?

The writ petition filed under Article 226 CrPC is dismissed; order of the trial court is upheld.

Smt. a N Kasthuri Vs Smt. Neena Hegde — Partition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^th DAY OF JUNE, 2020

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI

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WRIT PETITION NO.30799/2019 (GM-CPC)

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BETWEEN:

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SMT. A.N.KASTHURI W/O LATE A.N.NARAYANA KOTTARY D/O LATE VASU KOTTARY & LATE CHANDRAVATHI (CHANDRU) AGE: 72 YEARS, OCC: HOUSEWIFE, R/O: DOOR NO.17-10-679 & 17-10-676/1, KASTURI NIVAS, NARAYANA COMPOUND, MELINAMOGARU, ATTAVARA, MANGALURU-575 002.

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SHRI VINOD RAJ A.N S/O LATE A.N.NARAYANA KOTTARY AGE: 44 YEARS, OCC: BUSINESS, R/O: DOOR NO.17-10-679 & 17-10-676/1, KASTURI NIVAS, NARAYANA COMPOUND, MELINAMOGARU, ATTAVARA, MANGALURU-575 002.

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SHRI VIVEK RAJ A.N. S/O LATE A.N.NARAYANA KOTTARY AGE: 42 YEARS, OCC: BUSINESS,

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R/O: DOOR NO.17-10-680, KASTURI NIVAS, NARAYANA COMPOUND, MELINAMOGARU, ATTAVARA, MANGALURU-575 002.

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SMT. PRATHIBA J.KUMAR D/O LATE A.N.NARAYANA KOTTARY W/O LATE JEEVAN KUMAR KOTTARY AGE:54 YEARS, OCC: HOUSEWIFE, R/O BAAVANI SHANKER NIVAS VASANT NAGAR, MAROLI, KULSHEKARA POST, MANGALURU-575 005.

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SMT. ASHA KIRAN D/O LATE A.N. NARAYANA KOTTARY W/O NAGESH KUMAR KOTTARY, AGE: 52 YEARS, OCC: TEACHER, R/O SHIVAGIRI NILAYA, NEAR ROSEMYSTICA CONVENT, KAIKAMBA, KINIKAMBALAL POST MANGALURU-575 151.

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SMT. GEETHA UMESH D/O L ATE A.N. NARAYANA KOTTARY W/O UMESH KOTTARY AGE: 48 YEARS, OCC: HOUSEWIFE, R/O RACHANA VIHAR, BAJAJ HITHUL HOUSE, JEEPINAMOGARU, MANGALURU -75 009.

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SMT. SABITHA PRASHANT D/O LATE A.N. NARAYANA KOTTARY W/O PRASHANT KOTTARY, AGE 47 YEARS, OCC: BUSINESS, R/O SHRAVANA SHIVANI STORE,

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SHETTY BUILDING, OPP. KAVERI COLLEGE, ARJI VILLAGE, KALLUBANE POST VIRAJPET-571 218.

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... PETITIONERS

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(BY SMT. SNEHA SHASTRY, ADVOCATE FOR SRI G.BALAKRISHNA SHASTRY, ADVOCATE)

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AND:

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SMT. NEENA HEGDE D/O LATE KAMAL M AGE: 70 YEARS, OCC: HOUSEWIFE, R/O BAIRA KOTTARY COMPOUND, MELINAMOGARU, ATTAVARA, MANGALURU 575 002.

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SMT. VANI D D/O LATE KAMAL M AGE: 68 YEARS OCC: HOUSEWIFE, R/O DOOR NO.17-10-690 VENKAMMA COMPOUND, MELINAMOGARU, ATTAVARA, MANGALURU-575 002.

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SHRI ULLAS KUMAR MELINAMOGARU S/O LATE SHANTAPPA KOTTARY AGE: 66 YEARS, OCC: PRACTICING COMPANY SECRETRY, R/O DOOR NO.17-10-712, BAIRA KOTTARY COMPOUND, MELINAMOGARU, ATTAVARA, MANGALURU-575 002.

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SMT. JHANSI LAXMI ALVA D/O LATE PRATHIBA ALVA AGE: 42 YEARS, OCC: HOUSEWIFE R/O DOOR 17-10-686 & 17-10-687, VENKAMMA COMPOUND,

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MELINAMOGARU, ATTAVARA, MANGALURU-575 002.

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SMT. SUTHAN D/O LATE SUVASINI AGE: 45 YEARS, OCC: HOUSE WIFE R/O: B-306, GANESH GAURAV CO-OPERATIVE HOUSING SOCIETY SECTOR-3, CHARKOP, KANDIVILI (W) MUMBAI-400 076.

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SMT. TRIVENI D/O LATE SUVASINI AGE: 43 YEARS, OCC: SELF EMPLOYED R/O BAIRA KOTTARY COMPOUND, MELINAMOGARU, ATTAVARA, MANGALURU-575 002.

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... RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 25.04.2019 PASSED ON I.A.NO.2 IN O.S.NO.572/2019 ON THE FILE OF IV ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU, VIDE ANNEXURE-A.

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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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Petitioners/plaintiffs have filed the present writ petition invoking the writ jurisdiction of this Court assailing the order dated 25.04.2019 passed by the Court of IV

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Additional Civil Judge and JMFC, Mangaluru on the interlocutory application (I A No.2) in O.S.No.572/2019.

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A copy whereof is at Annexure -A, whereby their application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short ‘CPC’) seeking appointment of Court Commissioner for local investigation has been dismissed.

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Plaintiffs have filed a suit seeking the relief of declaration that plaintiffs have acquired easement right of way by prescription over the pathway which runs in and on the eastern side of ‘B’ schedule property, particularly, described in the sketch in yellow color and it is also marked as letter ‘P’.

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Plaintiffs have also sought for mandatory injunction directing defendant No.4 or any of the defendants liable to remove the blockage made to said pathway.

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Petitioners contended that there is a pathway for walking on the eastern side of ‘B’ schedule property.

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During the rainy season, there is a chance of disappearing of said path, if the same is not used for long time.

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That the defendants have obstructed to use the said pathway by way of plantation of banana plants and they have also made a dog cage in the said pathway. These obstructions were made on 13.05.2018.

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It is further averred by the plaintiffs that since the obstructions cannot be proved by oral evidence, if a commissioner is appointed for local investigation, the obstructions will be brought before the Court.

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Thus, plaintiffs were constrained to move application for appointment of commissioner for local investigation. The same was rejected by the trial Court. Hence, this petition.

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Smt. Sneha Shastry, learned counsel

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appearing for petitioners, in person, on behalf of Sri. Balakrishna Shastry, learned counsel contended that the

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order passed by the trial court is perverse and suffers from serious material irregularity.

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The finding of the trial Court that ex parte commission cannot be issued at an earlier stage of the suit is totally erroneous. She submits that the trial Court has erred in not taking note of the fact that application for issuance of commission cannot be rejected merely on the ground that evidence has not yet commenced and that a commissioner can be appointed even before filing written statement by defendants.

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In support of her contentions, learned counsel relied upon the decision in SHIVARAMA BHAT AND ANOTHER VS MAHABALA BHATT MULIYA AND OTHERS reported in 1969 (2) Mysore Law Journal 284 wherein this Court has held that in case of emergency and expediency, the Court has power to make an ex parte order issuing a commission.

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Learned counsel submitted that the appointment of Commissioner for local investigation does not amount to collection of evidence. On the contrary, the application was filed to ascertain the condition of the concerned premises by making local investigation. Therefore, there is no impediment to appoint a Commissioner.

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It is further urged that defendants have encroached petitioners’ land by putting up construction. Therefore, it is necessary to issue commission and a local investigation by a Commissioner to find out the encroachment. But the trial Court has failed to take note of the same and has erroneously passed the order of rejection.

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Lastly, she contended that viewed from any angle, the order passed by the trial court is contrary to facts and law. The trial Court has grossly erred in dismissing the application and hence, it warrants interference by this Court. Thus, she prayed that the order of the trial court is liable to be set aside.

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I have heard the learned counsel for the

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petitioners and perused petition papers.

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The simple issue involved in this writ petition indeed is a matter relating to issue of ex parte commission and appointment of Commissioner for local investigation.

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Plaintiffs have filed suit seeking declaration, mandatory injunction and prohibitory injunction. As could be seen from the plaint, at Annexure -B, the suit was instituted on 22^nd day of April 2019.

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Plaintiffs have also filed an application under Order XXVI Rule 9 read with Section 151 of Code of Civil Procedure seeking to appoint a Court Commissioner for local investigation along with the plaint.

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A reference is invited to Order XXVI Rule 9 of CPC, which reads as under:

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“ Commissions to make local

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investigations : - In any suit in which the Court deems a local investigation to be

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requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market- value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

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Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.”

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8. Order XXVI Rule 9 of CPC, empowers the Court

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to issue commission to make local investigation, which may be required for the purpose of elucidating any matter in dispute.

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The Court can issue local commission suo motu, if in the facts and circumstances of the case, it is deemed necessary that a local investigation is required and is proper for the purpose of elucidating any matter in dispute.

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The object of local investigation under Order XXVI Rule 9 of CPC is to obtain evidence, which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record. It clarifies or explains any point which is left doubtful on the evidence on record.

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In the instant case, the application has been filed along with the plaint itself. No doubt, an application can be filed at any stage of the proceedings, but it would be better if a commissioner for local investigation is appointed only after the parties have led the evidence.

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The purpose of appointing commissioner for local investigation of the spot is not to help the party to establish a case. It is needless to state that the object of order XXVI Rule 9 is not to assist the party to collect evidence.

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Since the object of the local investigation is not so much to collect evidence which can be taken in the Court,

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but the purpose is to obtain such evidence, which from its peculiar nature, can only be had on the spot with a view to elucidate any point which is left doubtful on the evidence produced before the Court.

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I have perused the order passed by the trial Court. While passing the order, the trial Court has considered the relevant contentions put forth by the applicants.

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In the instant case, plaintiffs are seeking issue of ex parte commission and appointment of Commissioner to note the existence of pathway as shown in the eye sketch filed along with the plaint and to report the matter before the Court.

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The trial Court has observed that the Commissioner may be appointed only when there is any ambiguity in the matter so as to enable the Court to decide the controversy between the parties.

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As already noticed above, the application for

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issue of ex parte commission is filed along with the plaint. If ex parte Commission is issued and a Commissioner is appointed for local investigation, the same would amount to collection of evidence.

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The issue of commission and the power of appointing the Court Commissioner for local investigation is a matter of judicial discretion and it should be exercised so that a final and just decision is rendered in the case. The trial Court has exercise the power in a right perspective.

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Therefore, the trial Court is justified in rejecting the application for appointment of a Commissioner to make a local investigation.

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The decision relied upon by learned counsel for petitioners deals with Order XXVI Rule 10(2)

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and 18 of CPC and in the instant case, the application is made under Order XXVI Rule 9 of CPC. Therefore, the said

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decision is not applicable to the facts and circumstances of the present case.

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In my view, the trial Court has exercised its power in right perspective. I see no reasons to interfere with the order passed by the trial Court so as to exercise supervisory power under Article 227 of the Constitution of India.

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Accordingly, the writ petition is dismissed .

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Sd/JUDGE

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Smt. a N Kasthuri v. Smt. Neena Hegde

Case brief

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Smt. a N Kasthuri v. Smt. Neena Hegde

Case brief

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