Dismissed

Sri Balappa S/O Venkappa Naik v. Sri Laxmappa S/O Bhimappa Mirji

Karnataka HC10 Jun 2021WP/147814/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition challenging the Additional Civil Judge's order appointing a court commissioner under Order XXVI Rule 9 CPC. The court held that a local investigation was necessary to resolve conflicting versions regarding a disputed road, validating the trial court's discretion.

What did the court decide?

Writ petition dismissed; impugned order of appointment of court commissioner allowed.

Sri Balappa S/O Venkappa Naik Vs Sri Laxmappa S/O… — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF JUNE 2021

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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WRIT PETITION NO.147814/2020 (GM-CPC)

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BETWEEN :

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SRI BALAPPA S/O VENKAPPA NAIK AGED ABOUT: 72 YEARS, OCC: AGRICULTURE, R/AT: BHANTNUR, TQ: MUDHOL, DIST: BAGALKOTE.

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... PETITIONER

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(BY SRI MRUTYUNJAY TATA BANGI, ADV.)

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AND :

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SRI LAXMAPPA S/O BHIMAPPA MIRJI, AGED ABOUT: 75 YEARS, OCC: AGRICULTURE.

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SRI RAMACHANDRA S/O HANAMAPPA MIRJI, AGED ABOUT: 58 YEARS, OCC: AGRICULTURE.

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SRI ADIVEPPA S/O SUBHAS TUMMARAMATTI AGED ABOUT: 43 YEARS, OCC: AGRICULTURE.

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SRI SANNAPPA S/O YAMANAPPA BHAJANTRI AGED ABOUT: 63 YEARS, OCC: AGRICULTURE.

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SRI HOLABASAPPA S/O RANGAPPA TUMMARAMATTI AGED ABOUT: 45 YEARS, OCC: AGRICULTURE.

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SRI HANAMANT S/O LAXMAPPA MIRJI AGED ABOUT: 50 YEARS, OCC: AGRICULTURE.

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SRI RANGAPPA S/O VENKAPPA NAIK, AGED ABOUT: 48 YEARS, OCC: AGRICULTURE.

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SRI MUTTAPPA S/O HANAMAPPA NAIK,

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AGED ABOUT: 43 YEARS, OCC: AGRICULTURE.

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SRI SURESH S/O HANAMAPPA NAIK AGED ABOUT: 38 YEARS, OCC: AGRICULTURE.

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SRI BHIMAPPA S/O HANAMAPPA KATAGERI AGED ABOUT: 58 YEARS, OCC: AGRICULTURE.

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SRI DUNDAPPA S/O HULLAPPA BASUNAYIK AGED ABOUT: 73 YEARS, OCC: AGRICULTURE.

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SRI SUBHASH S/O HULLAPPA BASUNAIK AGED ABOUT: 70 YEARS, OCC: AGRICULTURE.

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SRI RANGAPPA S/O YALLAPPA BASUNAIK AGED ABOUT: 43 YEARS, OCC: AGRICULTURE.

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ALL R/AT: BHANTNUR, TQ: MUDHOL, DIST: BAGALKOTE-587013.

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SRI LAXMAPPA S/O BHIMAPPA SATTARAGI, AGED ABOUT: 68 YEARS, OCC: AGRICULTURE. R/AT: JUNNUR, TQ: MUDHOL-587113, DIST: BAGALKOTE.

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... RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NAURE OF CERTIORARI OR ANY OTHER WRIT OR DIRECTION AND SET-ASIDE THE ORDER PASSED BY THE ADDL. CIVIL JUDGE AND JMFC, MUDHOL, PASSED IN O.S.NO.202 OF 2012 DATED 07.08.2020 ON I.A.NO.XVI COPY AS PER ANNEXURE-H AND DISMISS THE APPLICATION BY ALLOWING THE PRESENT WRIT PETITION AND SUCH OTHER RELIEFS.

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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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This writ petition is directed against the order dated 07.08.2020 passed on I.A.No.XVI filed under Order XXVI Rule 9 read with section 151 of the Code of Civil Procedure (“CPC” for short) in O.S.No.202/2012 pending on the file of Additional Civil Judge & JMFC, Mudhol for appointment of Court Commissioner for local inspection of the suit property.

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Plaintiffs-respondents have filed a suit for easementary right of prescription over the suit property shown by letter “XY” in the plaint sketch. During pendency of the suit, the plaintiff has filed an application under Order XXVI Rule 9 of CPC for appointment of the Court Commissioner. The same has been rejected by the Trial Court reserving liberty to the plaintiffs that, they can file an application for appointment of Court Commissioner after completion of evidence of the parties.

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After completion of evidence of the parties, the plaintiffs have filed an application for appointment of

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Court Commissioner. The same has been allowed by the Trial Court. Being aggrieved by the same, the petitioner has filed this writ petition.

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Learned counsel Sri Mrutyunjay Tata Bangi appearing for the petitioner-defendant No.1 submtis that, the order passed by the Trial Court by allowing the said application is contrary to the provisions of Order XXVI Rule 9 of CPC. He further contended that the plaintiffs have not made out a case for appointment of Court Commissioner. The earlier application filed by the plaintiffs for appointment of Court Commissioner is also rejected. After lapse of six years and after completion of evidence of both the parties and when the matter is set down for arguments, the plaintiffs have filed present application. The Trial Court without giving any reasons allowed the said application. Hence, he prayed to allow this writ petition by setting aside the order passed by the Trial Court on I.A.No.XVI.

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Heard learned counsel appearing for the petitioner. Perused the writ papers.

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The plaintiff has filed a suit for easementary right of prescription since suit pathway is being enjoyed by the public since time immemorial. Before commencement of the evidence, the plaintiffs have filed an application for appointment of Court Commissioner. The same had been rejected by the Trial Court on the ground that the Court Commissioner may be appointed at the later stage after completion of evidence of both the parties. After completion of evidence of both the parties, the plaintiffs have filed application in I.A.No.XVI under Order XXVI Rule 9 of CPC for appointment of Court Commissioner.

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Order XXVI Rule 9 of CPC reads as follows:

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9. Commissions to make local investigations.- In any suit in which the Court deems a local investigation to be 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

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thinks fit directing him to make such investigation and to report thereon to the Court:

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It is very clear from the above provision that, in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court can allow the petition filed for appointment of Court Commissioner.

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In this case, the Trial Court has given a clear finding that there is a dispute existing of the road and blockage of the road by the defendants. On careful reading of evidence on record, there is no sufficient material available on record to proceed with the matter. There are conflicting versions to adjudicate the dispute in the matter and it requires local investigation. Therefore the Trial Court has rightly exercised the power under Order XXVI Rule 9 of CPC in allowing the application filed by the plaintiff for appointment of Court Commissioner.

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10. Therefore, there is no error in the order

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passed by the Trial Court and hence this Court is

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declined to interfere in the said order.

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Accordingly, the writ petition is dismissed.

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Sd/- JUDGE

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Sri Balappa S/O Venkappa Naik v. Sri Laxmappa S/O Bhimappa Mirji

Case brief

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Sri Balappa S/O Venkappa Naik v. Sri Laxmappa S/O Bhimappa Mirji

Case brief

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