High Court declined to interfere with the order appointing a Court Commissioner in a civil suit, holding such discretionary decisions merit limited supervisory scrutiny under Article 227.
Writ petition disposed off; court requested trial within seven months.
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.5740 OF 2020 (GM-CPC)
BETWEEN:
MILLENNIUM HABITAT OWNERS ASSOCIATION, HAVING ITS OFFICE AT : MILLENNIUM HABITAT APARTMENTS, ITPL MAIN ROAD, KUNDALAHALLI, BROOKEFILED, BENGALURU-560037. REPT. BY ITS PRESIDENT. (BY SRI. D R RAVISHANKAR, ADV.,)
...PETITIONER
AND:
… RESPONDENTS
(BY SRI.DHANANJAYA JOSHI, ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDERS DATED 20.2.2020 AT ANNEXURE-K PASSED IN O.S NO.7781/2015 ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH 36) BENGALURU.
THIS PETITION COMING ON FOR ORDERS THIS DAY THROUGH VIDEO CONFERENCE, THE COURT MADE THE FOLLOWING:-
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ORDER
Petitioner being the defendant in an injunctive suit in O.S.No.7781/2015 is knocking at the doors of Writ Court for assailing the order dated 20/02/2020 a copy whereof is at Annexure-K whereby the learned XXXV Additional City Civil Judge, Bengaluru, having favoured respondentplaintiffs application filed under order XXVI Rule 9 of CPC, 1908 has appointed the Court Commissioner for conducting spot inspection and making report as to his observation in respect of the alleged common passage.
through his counsel resists the writ petition making submission in justification of the impugned order and on the reasons on which it is structured.
parties and having heard the learned counsel for the parties this Court declines to grant indulgence in the matter for the following reasons:
a) whether a particular matter requires to be looked
into by the Court Commissioner or not, is ordinarily a discretionary decision of the Court below, and such discretionary orders do not merit a deeper examination at
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the hands of the Writ Court exercising a limited supervisory constitutionally vested in it under Article 227 subject to all just exceptions into which argued case of the petitioner does not fit, vide SADHANA LODH Vs. NATIONAL INSRUANCE CO. LTD., & ANOTHER, (2003) 3 SCC 524;
b) by the impugned order what has been done is only the appointment of a Court Commissioner who would visit the spot after notice to both the stake holders and prepare an inspection report in terms of their instructions and submit the same for the consideration of the Court below; such innocuous orders are not fit for scrutiny at the hands of the Writ Court, the arguable legal lacunae therein notwithstanding;
c) the challenge to the impugned order is preposterous since, the Commissioner is yet to make the spot inspection and prepare the report thereafter; the report may turn out to be in favour of the petitioner as well; if it is in favour of the respondent – plaintiffs, it is open to the petitioner to register it’s Objections thereto which the Court below will consider objectively before acting upon the same; thus, there are checks & balances that prevent any likely prejudice to the parties, in the
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exercise to be undertaken to pursuant to impugned order; and,
d) lastly, the vehement contention of the learned counsel for the petitioner that there should be at least some legal material on record which warrants appointment of a Court Commissioner is true; but, the Court below after examining the matter has made the impugned order and therefore, it cannot be said that there was absolutely no material at all; added to this, the impugned order has brought about a just result which cannot be undone by a Writ Court.
With the above observations, writ petition is disposed off.
Learned judge of the Court below is requested to ensure accomplishment of the commission work within a period of four weeks and further, the trial & disposal of the suit preferably within an outer limit of seven months, all contentions of the parties having been kept open.
No costs.
Sd/JUDGE
Bsv
2 issues framed by the court
Whether writ court can interfere with discretionary order appointing a Court Commissioner under Order XXVI Rule 9 CPC.
Whether appointment of Court Commissioner for spot inspection without prior report warrants judicial intervention under Article 227.
Colour shows how this judgement treated each authority
Sadhana Lohar vs. National Insurance Co. Ltd. & AnotherRelied on¶27
SADHANA LODH Vs. NATIONAL INSRUANCE CO. LTD., & ANOTHER, (2003) 3 SCC 524 · Who else cites this
2 provisions across 2 enactments
Millennium Habitat Owners Association
Habitat Splendor Owners Association
Gopan Enterprises
Krishna S. Dixit
As recorded by the court registry
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