Allowed

Ganapati Rama Marathi v. Somu Veerbhadra Gouda

Karnataka HC23 Sept 2023WP/100328/2022

Case brief

AI extract

What is this about?

This High Court allowed a writ petition challenging an order rejecting an application to cross-examine a Court Commissioner. The court held that after objections were raised against the commissioner's report, the petitioner was entitled to summon the commissioner for cross-examination, setting aside the lower court's order.

What did the court decide?

Writ petition allowed; Impugned order set aside; Application allowed; Witness summons permitted to the Court Commissioner.

Ganapati Rama Marathi Vs Somu Veerbhadra Gouda — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC-D:11150 WP No. 100328 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 23^RD DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.100328 OF 2022 (GM-CPC)

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BETWEEN:

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GANAPATI RAMA MARATHI, A/A 52 YEARS, AGRICULTURIST, R/O: UMACHAGI, TAL: MUNDGOD, UTTAR KANNADA DISTRICT-581301.

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…PETITIONER

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(BY SRI A.P. HEGDE JANMANE & SRI VIJAY M. MALALI, ADVOCATES)

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AND:

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SOMU VEERBHADRA GOUDA, A/A 54 YEARS, AGRICULTURIST, R/O: UMACHAGI, TAL: MUNDGOD, UTTAR KANNADA DISTRICT-581301.

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…RESPONDENT

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(BY SRI V.G. BHAT, ADVOCATE)

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MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE APPROPRIATE WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI, QUASHING THE IMPUGNED ORDER PASSED BY LEARNED CIVIL JUDGE MUNDGOD ON I.A.NO.8 DATED 6-12-2021 IN O.S.NO.23/2017 AS PER ANNEXURE-J AND ALLOW I.A.NO.8 AND ISSUE SUMMONS TO TALUKA SURVEYOR TO GIVE EVIDENCE, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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2 - NC: 2023:KHC-D:11150 WP No. 100328 of 2022

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ORDER

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The captioned writ petition is filed by the

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petitioner/plaintiff assailing the order of the learned Judge in rejecting the application filed under Order XVI Rule 1 and 2 R/w Section 151 of CPC requesting to summon the Court Commissioner for cross-examination. The said order is under challenge.

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The petitioner/plaintiff has instituted a suit for injunction simplicitor against the respondent/defendant. Pending consideration of suit, petitioner/plaintiff filed an application alleging that respondent/defendant has made encroachment. The said application was allowed and Court-Commissioner was appointed. The Commissioner has submitted his report to which plaintiff has got serious objection and objections are filed. Learned Judge rejected the application on the ground that burden is on the plaintiff to prove the alleged encroachment.

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In a bare suit for injunction, the scope of enquiry is very limited. But however, on account of

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3 - NC: 2023:KHC-D:11150 WP No. 100328 of 2022

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peculiar circumstances, petitioner/plaintiff was compelled to file an application seeking local inspection. If a report is submitted by Commissioner and plaintiff has tendered objections, then I am of the view that he is entitled to cross-examine the Court Commissioner. Therefore, the order under challenge is not sustainable. If plaintiff is able to demonstrate that the Commission is faulty and not in accordance with the procedure contemplated under survey manual, he is entitled to seek further course of action in the case on hand. Therefore, the order under challenge is not sustainable.

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For the reasons stated supra, I proceed to pass the following:

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ORDER

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i) Writ petition is allowed.

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ii) The impugned order dated 06.12.2021 passed on I.A.No.VIII by learned Civil Judge, Mundgod in O.S.No.23/2017 as per

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4 - NC: 2023:KHC-D:11150 WP No. 100328 of 2022

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Annexure-J is hereby set-aside. Consequently, application is allowed.

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iii) Petitioner is permitted to take witness summons to the Commissioner.

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Sd/JUDGE

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List No.: 1 Sl No.: 27

Ganapati Rama Marathi v. Somu Veerbhadra Gouda

Case brief

What is this about?

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Ganapati Rama Marathi v. Somu Veerbhadra Gouda

Case brief

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