Dismissed

Mr. K K Shekar v. Mr. K K Sathyanarayana

Karnataka HC8 Dec 2021WP/42481/2019

Case brief

AI extract

What is this about?

This court dismissed the petitioner's writ petitions seeking to quash the trial court's rejection of applications to summon a Court Commissioner. The court held that the petitioner failed to make out a case for cross-examination given the undisputed measurements and the impracticality of the proposed partition.

What did the court decide?

Petitioner's objection was rejected; request to summon Court Commissioner was denied; writ petitions disposed of.

Mr. K K Shekar Vs Mr. K K Sathyanarayana — Partition | 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 DECEMBER, 2021

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BEFORE

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THE HON’BLE Mr. JUSTICE B.M. SHYAM PRASAD

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WRIT PETITION No.42488 of 2019 (GM-CPC) C/W WRIT PETITION No.42481 OF 2019 (GM-CPC)

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IN WRIT PETITION NO.42488 OF 2019

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BETWEEN : --------------

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MR. K.K. SHEKAR AGED ABOUT 64 YEARS S/O LATE MR. K.S.KRISHNAN R/O NO.460, 18^TH MAIN ROAD 4^TH T BLOCK JAYANAGAR BANGALORE - 560 041.

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… PETITIONER

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(BY SRI.RAMESHCHANDRA, ADV.)

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AND : -------

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MR. K.K. SATHYANARAYANA AGED ABOUT 72 YEARS S/O LATE. MR. K.S. KRISHNA R/O NO.460, 18^TH MAIN ROAD 4^TH T BLOCK

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JAYANAGARA BANGALORE - 560 041.

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… RESPONDENT

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(BY SRI.VACHAN B., ADVOCATE FOR RESPONDENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO QUASH THE ORDER DATED:17.08.2019 PASSED ON I.A.NO.10, BY THE HONBLE CITY CIVIL COURT (CCH-10) IN FDP NO.92/2007 ANNEXURE-A CALL FOR THE RECORDS IN FDP NO.92/2007, ON THE FILE OF THE HONBLE CITY CIVIL COURT (CCH-10) AT BANGALORE.

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IN WRIT PETITION NO.42481 OF 2019

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BETWEEN : --------------

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MR. K.K. SHEKAR AGED ABOUT 64 YEARS S/O LATE MR. K.S.KRISHNAN R/O NO.460, 18^TH MAIN ROAD 4^TH T BLOCK JAYANAGAR BANGALORE - 560 041. … PETITIONER (BY SRI. HEMACHANDRA K.N., ADV.)

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AND : -------

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MR. K.K. SATHYANARAYANA AGED ABOUT 72 YEARS

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S/O LATE. MR. K.S. KRISHNA R/O NO.460, 18^TH MAIN ROAD 4^TH T BLOCK JAYANAGARA BANGALORE - 560 041.

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… RESPONDENT

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(BY SRI.VACHAN B., ADVOCATE FOR RESPONDENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO QUASH THE ORDER DATED:17.08.2019 PASSED ON I.A.NOS 8 AND 9 BY THE HONBLE CITY CIVIL COURT (CCH-10) IN FDP NO.92/2007 ANNEXURE-A CALL FOR THE RECORDS IN FDP NO.92/2007, ON THE FILE OF THE HONBLE CITY CIVIL COURT (CCH-10) AT BANGALORE.

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THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING;

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O R D E R

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The petitioner, is a defendant in a suit for partition, is unsuccessful, and the suit that has resulted in commencement of the final decree proceedings where a Court Commissioner is appointed for reporting on whether the subject property could be partitioned by metes and bounds into seven shares. The petitioner’s grievance in

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this petition is because his request to summon the

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Commissioner to cross-examine on the report is rejected.

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The petitioner is one of the respondents in FDP No. 92/2019 on the file of XVIII Additional City Civil Judge, Bengaluru (for short, `the trial Court’). The details of the writ proceedings are as follows:

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W.P. No. 42488/2019: The petitioner has filed an application [I.A. No.10] under Order XVI Rule 1 of CPC to issue summons to the Court Commissioner who has filed his report on 17.01.2015. The trial Court has rejected this application by the impugned order dated 17.08.2019, and this writ petition is filed impugning this order.

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W.P. No. 42481/2019: The petitioner has filed applications (I.A. Nos. 8 and 9) under the provisions of Order XXI Rule 84, 85, 89(1a) of CPC to set aside the auction sale held on 27.08.2018. The trial Court by its

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order dated 17.08.2019 has rejected this application. The petitioner has filed this petition impugning this order dated 17.08.2019.

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The learned counsel for the parties are unanimous in their submission that because the auction sale held on 27.08.2018 has not culminated, this petition in W.P. No. 42481/2019 does not survive for consideration. They also submit that the question that will have to be considered in the other writ petition in W.P. No. 42488/2019 is: whether the trial Court has erred in rejecting the petitioner’s application [I.A. NO.10] to summon the Court Commissioner.

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The facts necessary for a decision on this question are stated thus:

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4.1 The parties to the original proceedings are the children of Sri. K.S. Krishnan, and the respondent has filed

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the suit in O.S. No. 4765/2000 against the petitioner and others for partition of two immovable properties viz., the property bearing No. 460, 18th Main, 4^th T Block, Jayanagar, Bengaluru (the subject property) and another immovable property. The petitioner has contested the suit asserting inter alia that the subject property is bequeathed in his favour by the father – Sri. K.S. Krishnan on 10.04.1985 and on the demise of the father on 01.02.2003, he has absolutely succeeded to the subject property. The petitioner had himself filed a suit for permanent injunction in O.S. No. 3235/2012.

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4.2 These suits in O.S. No. 4765/2000 and O.S. No. 3235/2012 are disposed by the common judgment dated 07.07.2007. The petitioner is unsuccessful in his appeals before this Court in RFA Nos. 1899 and 1900/2007 with these appeals being dismissed on 08.02.2012. The petitioner, it is undisputed, is also unsuccessful before the Hon’ble Supreme Court inasmuch as his special leave

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petitioners are dismissed by the Hon’ble Supreme Court on 30.09.2013. In the meanwhile, the respondent had commenced the final decree proceedings in FDP No. 92/2007 and these proceedings are continued after the disposal of the aforesaid proceedings.

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4.3 Insofar as the subject property, on the respondent’s application the civil Court has, on 12.09.2014, appointed a Commissioner to visit the subject property and report on whether this property is partible. The Commissioner has filed his report on 17.01.2015 reporting that the subject property cannot be divided by metes ad bounds. The petitioner has filed his objections on 10.04.2015, but the trial Court has accepted the Commissioner’s report on 20.11.2015. It is thereafter the present application, viz., I.A. No. 10 is filed for summoning the Court Commissioner.

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This Court must, at this stage, record that the learned counsel for the parties are unanimous in their submission that after the interim order granted by this Court is vacated, the respondent has persuaded the trial Court to pass orders for holding fresh auction and accordingly auction has been held on 07.12.2021 but the Court auction is yet to be held. As regards the other immovable property that is the subject matter of suit, it is submitted that auction is completed and the sale price is deposited with the trial Court.

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Sri. Ramesh Chandra, the learned counsel for the petitioner submits that the petitioner has filed his objections to the Commissioner’s report specifically contending that the Commissioner has filed his report stating that the subject property cannot be partitioned into seven shares as per the final decree without even visiting the subject property; and if it can be demonstrated that the Commissioner did not visit the subject property, with the

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Commissioner being examined in person on oath, his report must be rejected. He relies upon the provisions of Order XXVI Rule 10(2) to contend that though the Commissioner’s report would be part of the record, a person aggrieved by the report has a right to seek leave to cross-examine the Commissioner to vindicate the objections and as such, the petitioner has justifiably filed his application to summon the Court Commissioner.

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Sri. Ramesh Chandra next submits that even

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from the Commissioner’s report it is obvious that there is a 3 feet space along the southern boundary and, if this is so it is indubitable that the subject property can be divided into seven shares by metes and bounds with this 3 feet open space along the southern boundary being used as common access. He argues that the civil Court should have considered these aspects as well in rejecting the petitioner’s application to summon the Commissioner, and until necessary material is placed in this regard with the

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Commissioner being examined, his report cannot be the basis to hold that the subject property cannot be partitioned into seven shares by metes and bounds.

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Sri. Ramesh Chandra makes a rather feeble effort to contend that the measurement of the subject property is also disputed, and this Court must observe the effort is feeble because it is not disputed that the subject property, even according to the petitioner, measures 50 feet North to South and 75 feet East to West and bounded on the western by access/road.

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Sri. Vachan B., the learned counsel for the respondent while not disputing the proposition canvassed by Sri. Ramesh Chandra relying upon the provisions of Order XXVI Rule 10(2) of CPC, submits that the petitioner cannot as a matter of right assert that the Court Commissioner must be cross-examined. The petitioner should have placed some material on record to persuade

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the civil Court to accept that objections are so substantial that the Commissioner must be cross-examined to elucidate his report. However, in the present case, the measurement of the subject property cannot be disputed and if the measurement cannot be disputed, it would be obvious that the property cannot be divided into seven shares by metes and bounds. The Commissioner’s report is also the same and therefore, this Court must not interfere with the impugned order.

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This Court has anxiously considered the rival submissions and perused the record. Though the civil Court has rejected the petitioner’s application adverting to the petitioner’s conduct in taking repetitive opportunities, this Court has examined the records to decide on the petitioner’s objection. It is trite, especially with the decision of the Hon’ble Supreme Court in M. Siddiq (Ram Janmabhumi Temple-5J) v. Suresh Das [reported in (2020) 1 SCC 1] that a Report filed by a Commissioner on

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his appointment as such shall be evidence in the matter, and the Report could be impeached as regards (i) any of the matters referred, therein, (ii) any of the matters mentioned in the report, (iii) as to the report, and (iv) as to the manner in which the investigation is made i.e., on both matters of procedure followed in conducting the investigation and the substantive aspects of the report. The Hon’ble Supreme Court has held that:

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"A party may avail of that opportunity by seeking the examination of the Commissioner on matters bearing upon the report. A party may also lead evidence of its own witnesses who seek to controvert the methodology or the findings of the Commissioner appointed for conducting a scientific investigation. The right of a party to object to the report of the Commissioner is not abrogated merely because the Commissioner is not called for cross-examination. Much will depend on the nature of the objections which are sought to be urged by a party before the Court though the Commissioner was not called for examination".

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[underlining is by this Court]

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The litigation has prevailed for over two decades without any closure and therefore there must be expeditious closure. Further, it is not that everyone who is cited as a witness is automatically summoned, and the true rule is that if grounds are established a witness be will be called and if the request to summon a witness is belated, vexatious or frivolous, it is not accepted. This Court is of the considered view that the petitioner's objection and request must be considered in the light of these propositions.

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The petitioner’s first objection is that the Commissioner has not visited the subject property, and in support of this objection it is asserted that all the parties are not signatories and only some of them have signed the mahazar drawn by the Commissioner on 30.12.2014, the day on which he has visited the subject property. Indeed the petitioner has not signed the Mahazar, but the Court Commissioner has recorded that the petitioner has refused

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to sign stating he had applied for stay, and he had to attend the Small Causes Court and he was not in a position to say when he could return. This Court, on perusal of the record and the reason recorded by the Commissioner in the Mahazar, cannot reasonably opine that the petitioner is justified in this objection.

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The petitioner’s other objection is with 3 feet open space along the southern boundary, the subject property can be divided into seven equal parts. This Court is not persuaded to opine that this objection, given the measurement of the property viz., 50 feet along the road side and 75 feet in depth, that this property could be divided into seven shares. If this property is divided as suggested, each share holder will get open space of about 47' X 10', and this would be impractical. Therefore, this Court concludes that the petitioner has not made out a case for permission to cross-examine the Commissioner.

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At this stage it is also submitted on behalf of

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the petitioner that the petitioner has his belongings and he would be put to difficulty if the subject property were to be auctioned and there is a direction to deliver possession to the successful auction purchaser. This Court would only observe that it would be open to the petitioner to make necessary application before the civil Court in this regard, and in the event such application is made, it would be considered reasonably by the trial Court.

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The petitions stand disposed of accordingly.

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SD/JUDGE

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LRS.

Mr. K K Shekar v. Mr. K K Sathyanarayana

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Mr. K K Shekar v. Mr. K K Sathyanarayana

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