The High Court dismissed the writ petition filed by plaintiffs challenging the trial court order that deferred the appointment of a survey commission to after the conclusion of the trial, citing established principles regarding evidence collection.
Writ petition dismissed; no specific relief granted to petitioners.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2022
BEFORE
THE HON’BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.2154 OF 2022 (GM-CPC)
BETWEEN:
REP. BY HIS SPA HOLDER SRI. N. SUNDARA BABU S/O LATE N. REDDY AGED ABOUT 63 YEARS R/AT NO.66/67, ‘G’ NO.10TH STREET, JOGUPALAYAM, HALASURU, BENGALURU-560 008.
...PETITIONERS
(BY SRI. RAGHUNATH M.D., ADVOCATE)
AND:
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AGED ABOUT 62 YEARS R/AT NO.30, KUMARA KOVIL STREET, PARANGIPETTAI, CHIDAMBARAM TALUK, TAMILNADU-608 502.
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BENGALURU-560 008. REP. BY ITS DIRECTOR JOHN LOUIS JOSEPH.
….RESPONDENTS
(BY SRI. RAGHAVAN M., ADVOCATE FOR C/R1 AND R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20TH DECEMBER, 2021 ON IA.1 OF 2021 PASSED BY LXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU IN ORIGINAL SUIT NO.25486 OF 2019 AT ANNEXURE-H; AND ETC.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
This writ petition is filed by plaintiffs in Original Suit No.25486 of 2019 on the file of the LXXIV Additional City Civil and Sessions Judge, Mayo Hall unit, Bengaluru (for short, hereinafter referred to as ‘trial Court’), challenging the order dated 20th December, 2021.
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of 2021 under Order XXVI Rule 9 read with Section 151 of the Civil Procedure Code, seeking appointment of Survey Commission for measuring and fixing the boundaries of suit schedule property. The said application was resisted by the defendant No.5. The trial Court, after considering the material on record, by order dated 20th December, 2021 has passed the following order:
“I.A. No.1/21 filed by plaintiffs U/O.26 R.9 of Code of Civil
Procedure is kept open for consideration after conclusion of trial”
Feeling aggrieved by the order dated 20th December, 2021, plaintiffs have presented this writ petition.
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passed by this Court in the aforementioned writ petition. Therefore, he contended that the impugned order passed by the trial Court requires interference in this writ petition.
AND OTHERS reported in 2021 SCC Online SC 341, has arrived at a conclusion that the application in IA.1 of 2021 shall be considered after the conclusion of the trial. It is well established principle of law by this Court in the case of MISS. RENUKA vs.
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SRI. TAMMANNA reported in ILR 2007 KAR 3029, that the Court cannot appoint Commissioner to collect evidence. I have also noticed that the said application has been filed by plaintiffs before the commencement of the evidence and same amounts to collection of evidence and the plaintiff has to prove the case based on the oral and documentary evidence before the trial Court. In that view of the matter, as the trial Court neither dismissed nor allowed the application, however, kept open for consideration after conclusion of the trial. I do not find any merit in the writ petition. Accordingly, writ petition is dismissed.
Sd/JUDGE
ARK
1 issue framed by the court
Whether the High Court should interfere with the trial court order keeping the appointment of a survey commission application open for consideration after the conclusion of the trial.
Colour shows how this judgement treated each authority
Rahul S. Shah & OthersReferred¶40
2021 SCC Online SC 341 · Who else cites this
Miss. Renuka vs. Sri. TamannaReferred¶41
ILR 2007 KAR 3029 · Who else cites this
2 provisions across 1 enactments
Dr. N. Ramamurthy
Smt. Maheshwari Ranganathan
E.S. Indires
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
