Allowed

Sri. Rama Rao a Bhat v. Sri. Prabhakar Bhat

Karnataka HC8 Mar 2021WP/37063/2017

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed to quash an order rejecting a request for support staff to facilitate a court commissioner's survey. The Court held the impugned order was erroneous on the face of the record as it failed to address the commissioner's statutory disability.

What did the court decide?

Impugned order set at naught; petitioner's application partly favoured; lower court directed to make further steps forthwith.

Sri. Rama Rao a Bhat Vs Sri. Prabhakar Bhat — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH 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.37063 OF 2017 (GM-CPC)

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BETWEEN

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SRI. RAMA RAO A BHAT SON OF LATE AYYAPPA BHAT, AGED ABOUT 58 YEARS, SHREE RAM CANTEEN, NEAR SEETHARAMA TEMPLE, ASHWATHAPURA, BADAGAMIJAR VILLAGE, MANGALORE 574227. … PETITIONER

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(BY SRI. RAJASHEKAR S, ADVOCATE)

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AND

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1 . SRI. PRABHAKAR BHAT SON OF LATE K. MAHADEVA BHAT, AGED ABOUT 70 YEARS, RESIDING NEAR MARUTHI TEMPLE, BADAGAMIJAR VILLAGE, MANGALORE 574 227.

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2 . SRI. R.M. BHAT SON OF K. MAHADEVA BHAT, AGED ABOUT 77 YEARS, RESIDING AT NO.953, 4TH "C" MAIN, BAIRESHWARA NAGAR, NAGARABHAVI MAIN ROAD, BANGALORE 560 072.

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3 . SMT. P.N. SUGUNDHA @ LAKSHMI P.N WIFE OF LATE P.R. NARASIMHA MURTHY, AGED ABOUT 68 YEARS SRI RAM FANCY STORES,

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DHARMASTHALA ROAD, OPP. SRI CHANNAKESHAVA CHATHRA, CHITRADURGA 577 501.

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4 . SMT. M.L. VIJAYALAKSHMI W/O M.B. LAKSHMAN RAO, AGED ABOUT 63 YEARS, RESIDING AT NO.5/188, NEAR SEETHARAMA KALYANA MANTAP, 2ND CROSS, DURGA ROAD, SHIMOGA 571 201.

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5 . SRI. SURESH.K SON OF MAHADEVA BHAT, AGED ABOUT 63 YEARS, SUKRUTHUA NIVAS, FLAT NO.623, SECTOR NO.5, SHREE NAGARA, BELGAUM 590 016.

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6 . SRI. RAMESH CHANDRA SON OF MAHADEVA BHAT, AGED ABOUT 60 YEARS, RESIDING AT NO.35, 2ND CROSS, BHAGYA SHREE TAYALI LAYOUT, RACHENAHALLI, SHIVARAM KARANTH NAGARA BANGALORE 560 077.

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… RESPONDENTS

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(BY SRI. CHANDRANATH ARIGA K, ADVOCATE FOR R1; V/O DATED 30.8.2017, NOTICE TO R2 – R6 IS D/W)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON ORDER DTD 11.3.216 PASSED ON IA NO.28 AND IA NO.29 FILED IN O.S.NO.183/2015 ON THE FILE OF SENIOR CIVIL JUDGE AND ADDITIONAL CHIEF JUDICIAL MAGISTRATE KARKALA VIDE ANNEXURE-A IN SO FAR AS THE PETITIONERS ARE CONCERNED AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING – B GROUP, THIS DAY THROUGH PHYSICAL HEARING, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner happens to be the 1^st defendant in a

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declaration suit in O.S.No.183/2015; the said suit is filed by the 1^st respondent herein and other respondents happen to be rest of the defendants; at the instance of respondent-plaintiff in terms of his application filed u/o XXVI Rule 9 of CPC, 1908, the court below had appointed commissioner to ascertain the existence of a path in the suit property; the commissioner by Report dated 28.7.2014, expressed his difficulty to accomplish the job perfectly, inasmuch as he did not have the support staff nor the supporting documents from the jurisdictional Revenue Office.

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In the above fact matrix, the petitioner moved an application requesting the learned trial Judge to address the complaint of the court commissioner by providing support staff and support material for accomplishing the job at the hands, afresh; the said application having been rejected, he is knocking at the doors of writ court; after service of notice, the respondent-plaintiff having entered appearance through his counsel, vehemently opposes the writ petition making submission in justification of the impugned order specifically

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pointing out that the Commissioner’s Report at paras 4, 5 & 6 states as to non-existence of the path within the compounded property although there is some indication as to the existence of such a path yonder the compound; so contending, he seeks dismissal of 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 marginal indulgence in the matter as under and for the following reasons:

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(a) The commissioner was appointed at the instance of 1^st respondent-plaintiff; Commissioner in his subject report has expressed difficulty that came in his way of accomplishing the task in a perfect manner, the said difficulty being non-availability of the support staff from the survey office and certain documents, as well; it has been a long standing position of law that ordinarily, the Court Commissioner is an extended arm of the court which appointed it and therefore, where the Commissioner points out the handicap, it is the duty of the court to address the same so that the job is accomplished perfectly; this having

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not animated the impugned order, there is an error apparent on the face of the record.

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(b) The vehement contention of learned counsel for

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the respondent-plaintiff that what has been stated in paras 4, 5 & 6 read with para 7A of the report, makes it clear as to the non-existence of the intruding path in the property and therefore, there is no need for re-exercise being undertaken, is bit difficult to countenance; as already mentioned above, the commissioner himself has stated about his difficulty in accomplishing the job and therefore, the Report cannot be construed in the way, as suggested by the learned counsel; no prejudice would have been caused to any of the parties if additional exercise is undertaken by the Commissioner with

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the aid of support staff namely the Taluka Surveyor and certain documents which he has pointed out in the Report itself; the additional report to be submitted after this exercise can be read along with the original one already submitted since the original Report cannot be eschewed from the records, as rightly submitted by Mr.Ariga.

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In the above circumstances, this Writ Petition marginally succeeds; impugned order is set at naught;

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petitioner’s subject application having been partly favoured, the court below is requested to take further steps forthwith keeping in mind the observations made herein above.

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The parties are not at liberty to issue any fresh instructions.

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Costs made easy.

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Sd/JUDGE

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cbc

Sri. Rama Rao a Bhat v. Sri. Prabhakar Bhat

Case brief

What is this about?

What did the court decide?

Sri. Rama Rao a Bhat v. Sri. Prabhakar Bhat

Case brief

What is this about?

What did the court decide?

What the court decided

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