Partly allowed

Sri M P Prakash v. Sri M N Bhogaiah

Karnataka HC1 Mar 2021WP/17850/2018

Case brief

AI extract

What is this about?

Petitioner challenged interim order in an original suit for declaration appointing a court commissioner. Court held such appointment premature under settled law unless justified exceptions arise. Impugned order set aside; fresh application allowed post-trial.

What did the court decide?

Impugned order appointing commissioner set at naught; respondent's application dismissed; liberty to apply fresh after trial completion.

Sri M P Prakash Vs Sri M N Bhogaiah — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO.17850 OF 2018 (GM-CPC)

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BETWEEN:

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SRI. M.P. PRAKASH, S/O. LATE. N. PUTTASWAMY, AGED ABOUT 69 YEARS, R/AT NO.990/1, NEW NO.F-4/1, 2^ND MAIN, 3^RD CROSS, VIDYARANYPURAM, KILLE MOHALLA, MYSURU – 570 008.

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REP: BY HIS SPECIAL POWER OF ATTORNEY HOLDER, SRI. M.P. SHANKAR, S/O. LATE. N.PUTTASWAMY, AGED ABOUT 67 YEARS, R/AT NO. 990/1, NEW NO.F-4/1, 2^ND MAIN, 3^RD CROSS, VIDYARANYPURAM, KILLE MOHALLA, MYSURU – 570 008.

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…PETITIONER

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(BY SRI. R.S.RAVI, ADVOCATE)

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AND:

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SRI. M.N. BHOGAIAH, S/O. LATE NANJUNDAPPA, AGED ABOUT 73 YEARS, R/AT NO.989, 2^ND MAIN, 3^RD CROSS, VIDYARANYPURAM, KILLE MOHALLA, MYSURU – 570 008.

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…RESPONDENT

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(BY SRI. M.C.RAVIKUMAR, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 09.04.2018 MADE ON I.A.NO.11/2018, IN OS NO.146/2011 ON THE FILE OF THE III ADDL. I CIVIL JUDGE & JMFC, MYSURU VIDE ANNX-H.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The short grievance of the petitioner-defendant in a suit for declaration in O.S.No.146/2011 is against the

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appointment of the Commissioner when the trial therein is half a through. After service of notice, the respondent-plaintiff having entered appearance through his counsel, vehemently opposes the writ petition.

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Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant a limited indulgence in the matter inasmuch as, it has been a long settled position of law that ordinarily, the request for appointment of Court Commissioner is to be made after the accomplishment of the trial, subject to all just exceptions, into which argued case of the parties does not fit; impugned order runs repugnant to the same.

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In the above circumstances, this writ petition succeeds in part; impugned order is set at naught; respondent’s subject application is dismissed reserving liberty to him to file a fresh

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application after the accomplishment of the trial, if grounds do obtain for the same.

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It hardly needs to be stated that whatever has been stated in the impugned order shall not be a bar for consideration of application afresh on its intrinsic merits and in accordance with law.

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All contentions of the parties are kept open.

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Costs made easy.

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Sd/JUDGE

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Sri M P Prakash v. Sri M N Bhogaiah

Case brief

What is this about?

What did the court decide?

Sri M P Prakash v. Sri M N Bhogaiah

Case brief

What is this about?

What did the court decide?

What the court decided

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