Allowed

Durgappa S/O Tualasavva Madar v. Vivekanand S/O Mahadev Havalakod

Karnataka HC10 Jan 2023WP/100176/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the trial court's order appointing a Court Commissioner for local inspection before evidence in a property suit. The writ court held the application was premature and directed the trial court to reconsider it after evidence.

What did the court decide?

Writ petition allowed; impugned order set aside; trial court directed to reconsider application after evidence.

Durgappa S/O Tualasavva Madar Vs Vivekanand S/O Mahadev… — Property and Title | Karnataka HC (2023)

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WP No. 100176 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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WRIT PETITION NO. 100176/2023 (GM-CPC)

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BETWEEN:

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DURGAPPA S/O TUALASAVVA MADAR, AGE: 62 YEARS, OCC AGRICULTURE, R/O. CHIKKUR VILLAGE, TQ. MUDHOL, DIST. BAGALKOT-587122.

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GOPAL S/O TUALASAVVA MADAR, AGE: 52 YEARS, OCC AGRICULTURE, R/O. CHIKKUR VILLAGE, TQ. MUDHOL, DIST. BAGALKOT-587122.

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PETITIONERS

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(BY SRI. PAVAN B DODDATTI AND SMT. DEEPA P. DODDATTI, ADVOCATES)

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AND:

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VIVEKANAND S/O MAHADEV HAVALAKOD, AGE: 40 YEARS, OCC AGRICULTURE, R/O. NEAR KALINA ANGADI, LOKAPUR, TQ. MUDHOL, DIST. BAGALKOT-587122.

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CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Date: 2023.01.14 11:17:18 +0530

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NAVEEN S/O MAHADEV HAVALAKOD, AGE: 36 YEARS, OCC AGRICULTURE, R/O. NEAR KALINA ANGADI, LOKAPUR TQ. MUDHOL, DIST. BAGALKOT-587122.

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SURESH S/O TUALASAVVA MADAR, AGE: 52 YEARS, OCC AGRICULTURE, R/O. CHIKKUR VILLAGE, TQ. MUDHOL, DIST. BAGALKOT-587122.

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RESPONDENTS

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(BY SRI. GIRISH A. YADAWAD, ADVOCATE FOR R1 & R2, NOTICE TO R3 IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER AT ANNEXURE-E DATED 25/11/2022 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC, MUDHOL IN O.S. NO. 361/2018 & ETC.

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WP No. 100176 of 2023

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This writ petition is directed against the impugned order dated 25.11.2022 passed on I.A. No. 5 in O.S. No. 361/2021 whereby the said application filed by the respondents/ defendants under Order XXVI Rule 9 r/w Sec. 151 CPC for appointment of a Court Commissioner was allowed by the trial Court.

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I have heard learned counsel for the petitioners and the learned counsel for the respondents No.1 and 2 and perused the impugned order including the material on record. Notice to respondent No.3 is dispensed with at the request of the petitioner.

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In addition to reiterating the various contentions urged in the writ petition, learned counsel for the petitioner submits that in the aforesaid suit for declaration and permanent injunction filed by the plaintiffs against the defendants, even before commencement of evidence, the defendants filed the instant application seeking appointment of a Court Commissioner to conduct local inspection.

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It is submitted that the procedure of filing an application for appointment of Court Commissioner to conduct local inspection

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WP No. 100176 of 2023

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would have to be necessarily undertake by the trial Court only after completion of evidence and not before commencement of evidence as done in the instant case.

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Per contra, learned counsel for the respondents No.1 and 2 submits that in view of the material on record which indicates that there are allegations and counter allegations as regards encroachment made by the plaintiffs in relation to the suit schedule property, the trial Court was fully justified in appointing a Court Commissioner and the impugned order does not warrant interference by this Court in the present writ petition.

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The material on record discloses that in the aforesaid suit for declaration and permanent injunction and other reliefs in relation to the suit schedule immovable property, there is a serious dispute as regards the location, identity, boundaries and measurement of the suit schedule property and there are several contentious issues and disputed questions of law in this regard arising between the parties. While it is the specific contention of the petitioners/ plaintiffs that the respondents No.1 and 2/ defendants have encroached upon the suit schedule property, the said contention is seriously disputed by the respondents No.1 and 2-defendants.

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WP No. 100176 of 2023

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Under these circumstances, I am of the considered opinion that the trial Court ought to have permitted the parties to adduce oral and documentary evidence in support of their respective claim in the first instance and thereafter consider the application, I.A. No. 5 filed under Order XXVI Rule 9 CPC for appointment of a Court Commissioner to conduct local inspection after completion of evidence.

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In the peculiar / special facts and circumstances obtaining in the instant case, I am of the view that the application, I.A. No. 5 was premature and ought to have been deferred for consideration after completion of evidence and on this ground alone the impugned order deserves to be set aside and necessary direction are to be issued to the trial Court in this regard.

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In the result, I pass the following order.

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ORDER

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i) Writ Petition is allowed;

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ii) Impugned order dated 25.11.2022 passed on I.A. No. 5 in

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O.S. No. 361/2021 is set aside;

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WP No. 100176 of 2023

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iii) The trial Court is directed to reconsider and pass appropriate

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orders on I.A. No. 5 in accordance with law after completion

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of evidence by both the sides in the suit;

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iv) All rival contentions are kept open and no opinion is

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expressed on the same.

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SD JUDGE

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BVV List No.: 2 Sl No.: 1

Durgappa S/O Tualasavva Madar v. Vivekanand S/O Mahadev Havalakod

Case brief

What is this about?

What did the court decide?

Durgappa S/O Tualasavva Madar v. Vivekanand S/O Mahadev Havalakod

Case brief

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What did the court decide?

What the court decided

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