The Karnataka High Court dismissed a writ petition challenging the rejection of an application for appointing a Court Commissioner by the trial court. The bench declined to grant relief, holding that the matter would await the conclusion of the trial proceedings.
The writ petition was disposed off with liberty to revive the application after the trial is over.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2021
BEFORE
THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.101 OF 2021 (GM-CPC)
BETWEEN:
SRI. K.GOVINDAN, S/O LATE KRISHNAPPA, AGED ABOUIT 69 YEARS, RESIDING AT NO.24, 2ND CROSS, ANUPAMA COLLEGE, M G NAGARA, SHANKAR MUTT, MAHALAKSHMIPURAM LAYOUT, BENGALURU – 560 086.
…PETITIONER (BY SRI. SUBRAMANYA KAUSHIK R.S., ADVOCATE FOR SRI.SRINIVAS S.V., ADVOCATE)
AND:
SRI. MUNIYAPPA, SINCE DEAD BY HIS LRS.,
2 . SRI. RAJANNA, S/O LATE MUNIYAPPA, AGED ABOUT 66 YEARS,
3 . SRI. RADHAKRISHNA, S/O LATE MUNIYAPPA, AGED ABOUT 60 YEARS,
4 . SRI. MANJU, S/O LATE MUNIYAPPA, AGED ABOUT 58 YEARS,
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5 . SRI. SOMASHEKAR, S/O LATE MUNIYAPPA, AGED ABOUT 55 YEARS,
6 . SRI. JAYADEV, S/O LATE MUNIYAPPA, AGED ABOUT 54 YEARS,
RESPONDENT NOS.1 TO 6 ARE RESIDING AT NO.7, 34TH ‘B’ CROSS, JAGANAHALLI, 2ND BLOCK, RAJAJINAGAR, BENGALURU-560010
7 . M/S TARAMANDAL HOUSING CO OPERATIVE SOCIETY LTD., BY SECRETARY, NO.52, GANIGARA LANE, BENGALURU – 560 002.
…RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD.11.12.2020 ON IA NO.64 IN EX NO.1800/2016 PASSED BY THE XXX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-31) BENGALURU CITY WHICH IS HEREWITH PRODUCED AS ANNEXURE-J AND ALLOW THE APPLICATION IN TERMS OF THE PRAYER THEREIN.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner being the objector in Ex.No.1800/2016 is knocking at the doors of the Writ Court for assailing the order dated 11.12.2020 whereby the learned XXX Additional
City Civil Judge, Bangalore, having rejected his application in
I.A.No.64 filed under Order XXVI Rule 9 of CPC, 1908 has
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refused to appoint the Court Commissioner as sought for, for conducting the spot inspection and for submitting the report.
petitioner and having perused the petition papers, this Court declines to grant indulgence in the matter on a short ground that the subject application has been moved even before the trial has commenced on the objectors application, which needs to be treated as the suit proceeding in view of Order XXI Rule101 r/w 103 of CPC, 1908.
In the above circumstances, writ petition is disposed off, reserving liberty to the petitioner to revive the application after the trial is over.
It hardly needs to be stated that the observations in the impugned order shall not influence the consideration of fresh application, if and when made, after the accomplishment of the trial.
Sd/JUDGE
DS
2 issues framed by the court
Whether the Writ Court should intervene to direct the Trial Court to appoint a Court Commissioner for spot inspection before the trial has commenced on an objector's application.
Whether an application under Order XXVI Rule 9 CPC can be treated as a plea distinct from the suit proceeding under Order XXI Rule 101 and 103 CPC.
2 provisions across 1 enactments
Sri. K.Govindan
Smt. Thayamma
Sri. Rajanna
Sri. Radhakrishna
Sri. Manju
M/S Taramandal Housing Co Operative Society Ltd.
Krishna S.Dixit
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
