Allowed

Smt Kavitha M v. Smt Asha M Jain

Karnataka HC1 Sept 2023WP/1168/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed the trial court order appointing a local Commissioner under Order XXVI Rule 9 of CPC. The Court held that since the plaint's description of the property was sufficient for identification relative to Order VII Rule 3 of CPC, appointing a Commissioner was erroneous.

What did the court decide?

The impugned order dated 02.01.2023 allowing I.A.No.5 under Order XXVI Rule 9 of CPC in O.S.No.2306/2022 is set aside. I.A.No.5 stands rejected.

Smt Kavitha M Vs Smt Asha M Jain — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:31565 WP No. 1168 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 1168 OF 2023 (GM-CPC)

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BETWEEN:

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SMT. KAVITHA M W/O SRI SHANKAR NAIK G.K AGED ABOUT 40 YEARS R/AT NO. 140/141 SRI. CHAMUNDI NILAYA 15^TH CROSS, BALAJI LAYOUT MALLATHHALLI VILLAGE BANGALORE-560 072.

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…PETITIONER

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(BY SRI. CHANDRASHEKAR H B, ADV.)

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AND:

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SMT. ASHA M JAIN W/O SRI MAHENDRA KUMAR S. JAIN D/O SRI JUHARMALJI S. JAIN Digitally AGED ABOUT 57 YEARS signed by A K CHANDRIKA R/AT NO. 97, 4^TH CROSS Location: 2^ND MAIN, VIDIA LAYOUT SOCIETY HIGH COURT VIJAYANAGAR OF BANGALORE 560 040. KARNATAKA

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…RESPONDENT

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(BY SRI. PARASMAL B @ PARAS JAIN, ADV.)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED ON IA.NO 5 DATED 02.01.2023 PASSED IN O.S.NO. 2306/2022 BY THE 17^TH ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH- 16), PRODUCED AT ANNEXUREE, AND CONSEQUENTLY ALLOW I.A NO.2 FILED BY THE

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NC: 2023:KHC:31565 WP No. 1168 of 2023

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PETITIONER UNDER ORDER VII RULE 11 (A) AND (D) OF CPC PRODUCED VIDE ANNEXURE- C.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner/defendant in O.S.No.2306/2022 is

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before this Court under Article 227 of the Constitution of India against order dated 02.01.2023 on I.A.No.5 by which, plaintiff’s application filed under Order XXVI Rule 9 of CPC is allowed and Commissioner is appointed for local inspection as prayed in the application.

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Heard learned counsel Sri.Chandrashekar H.B., for petitioner and learned counsel Sri.Paras Jain for

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respondent/plaintiff. Perused the writ petition papers.

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Learned counsel for the petitioner would submit that the respondent/plaintiff filed suit for a judgment and decree of permanent mandatory injunction against defendant from interfering with the suit schedule property

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and possession of the suit schedule property along with consequential other reliefs. Learned counsel for the

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petitioner would submit that even before framing of issues, the respondent/plaintiff filed I.A.No.5 under Order XXVI Rule 9 of CPC to appoint Court Commissioner for local inspection of the suit schedule property to find out its location, boundaries, property numbers of the adjacent properties, etc. Learned counsel would submit that the purpose for which, the plaintiff has sought appointment of Commissioner is not permissible. It is submitted that in terms of Order VII Rule 3 of CPC, the plaintiff while submitting the plaint shall describe the property in the plaint which shall be sufficient to identify it with boundaries or numbers as in the record of settlement or survey. When that being the requirement, the respondent/plaintiff cannot seek appointment of Commissioner to identify its location, boundaries, property numbers of adjacent properties, etc. Learned counsel would submit that the trial Court even before evidence of the parties and without gathering the material in support of the claim of the respondent/plaintiff could not have appointed the Commissioner for local inspection as sought

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in the application. Learned counsel would further submit that the suit is one for permanent mandatory injunction and possession. Unless the plaintiff is definite as to the identity of the property, he could not have filed the suit for the relief of permanent injunction and possession. Unless the property is definite and identifiable, no suit for permanent injunction or for possession could be filed. Thus, he prays for allowing the writ petition and to quash the impugned order.

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Per contra, learned counsel Sri.Paras Jain for respondent/plaintiff would submit that in the facts and circumstances of the present case, appointment of Commissioner would be necessary and appointment of Commissioner even before the evidence would aid the Court in proper adjudication of the dispute between the parties. Learned counsel would further submit that the defendant disputes the plaint schedule property. As such,

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it has become necessary for the plaintiff to file an application for appointment of Commissioner. Learned

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counsel would submit that the site of the plaintiff measures 50 x 82 feet whereas the defendant’s property measures 40 x 60 feet. Further, he submits that there is dispute with regard to boundaries of both properties of plaintiff and defendant. Therefore, if the Commissioner is appointed for verifying physical features of the sites in question, the Court would be in a better position to appreciate the dispute between the parties. Learned counsel Sri.Paras Jain places reliance on the decision of the Hon'ble Apex Court reported in AIR 2021 SC 2161 in the case of RAHUL S SHAH v/s JINENDRA KUMAR GANDHI AND OTHERS and also following decisions filed today before the Court along with memo dated 01.09.2023.

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1.2021(2) AIR KAR 392 (S.R.SIDDALINGA DEVARU v/s S.CHANDRASHEKARAIAH);

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2.2018(5) Kant.LJ 370

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(MRS.SUSHMA M MALLY & OTHERS v/s MANGALORE LADIES CLUB, LIGHT HOUSE HILL ROAD, MANGALORE); 3.2021 AIR CC 391

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(R.VENKATACHALAPATHY v/s R.SREERANGAMMA)

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4.2021 AIR CC 1398

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(SHANKARAGOUDA VEERANAGOUDA PATIL v/s GIRIJAVVA BASANGOUDA AND OTHERS);

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5.2023(3) AIR Kar R 181

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(SHRI.KHEMANNA AND OTHERS v/s SHRI.PARASHURAM AND OTHERS)

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6.2014(16) R.C.R. (Civil) 44

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(LALITHAMMA AND ANOTHER v/s VISHVESHWARAIAH AND ANOTHER.

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Thus, he prays for dismissal of the writ petition.

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The suit of the plaintiffs is for a judgment and decree

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of permanent mandatory injunction restraining the defendant from interfering with the suit schedule property and for possession and other consequential reliefs. The suit schedule property is described as follows:

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SCHEDULE

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ALL THAT site bearing No.148 (New No.310), situated at Mallathahalli village, Yeshwanthpura Hobli, Bangalore North Taluk, Bangalore, now identified as bearing PID No.148/83/1GB, located at 15^th Cross, Balaji Layout, Mallathahalli village, Bangalore North Taluk,

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Bangalore, measuring East to West Northern side 84’ (Eighty Four feet), Southern side:82’ (Eighty Two feet) and North to South: 50’ (Fifty feet) admeasuring 84 +82/2 x 50 feet comprising an area of 4150 square feet and bounded on:

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East by : 15^th Cross, Balaji Layout West by : Private property

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North by : Site No.311

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South by : Site No.309.

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When a suit for permanent injunction and possession is filed, the identity of the property shall be clear and definite. Order VII Rule 3 of CPC reads as follows:

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“3.Where the subject-matter of the suit is

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immovable property , - Where the subjectmatter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey,

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the plaint shall specify such boundaries or numbers.”

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A reading of the above rule makes it abundantly clear that, if the subject-matter of the suit is immovable property, the plaint shall contain description of the property which would be sufficient to identify it with boundaries or numbers.

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The plaintiff filed I.A.No.5 under Order XXVI Rule 9 of CPC and the prayer in the application reads as follows:

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“For the reasons stated in the accompanying affidavit, the plaintiff above named prays that this Hon’ble Court may be pleased to appoint Local Commissioner/an Advocate to inspect the suit schedule property to find out its location, boundaries, property numbers of the adjacent property located on Northern side, Southern side, Western side and on Eastern side, width of the road, name of the road and location of site number 139, 139A,

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140 and 141 and its boundaries in the interest

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of justice and equity.”

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The prayer in the above application is to appoint Commissioner to inspect the suit schedule property to find out its location, boundaries, property numbers of the adjacent properties located on Northern, Southern, Western and Eastern sides, which means the plaintiff is not definite about the suit schedule property. The plaintiff/ respondent herein has not sought for appointment of Commissioner to measure the suit schedule property nor there is an allegation of encroachment. The plaintiff has filed an application for appointment of Commissioner to find out the location of the suit schedule property, its boundaries and property numbers of the adjacent properties. In a suit for permanent injunction and possession, if the plaintiff is not definite about her suit schedule property, to find out her property, the Commissioner cannot be appointed.

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9. Order XXVI Rule 9 of CPC would permit appointment

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of Commissioner for local investigation for the purpose of elucidating any matter in dispute directing him to make such investigation and to report thereon to the Court. The decision on which, learned counsel Sri.Paras Jain places reliance i.e. in RAHUL S SHAH (supra) would not assist the respondent. That was a case arising under Order XXI Rule 97 of CPC in an execution proceeding to find out the status of the property. When the possession was not in dispute, the Hon'ble Apex Court observed that appointment of Commissioner could be considered. The other decisions placed on record by the learned counsel for the respondent/plaintiff, all relate to the case where encroachment was alleged and to find out encroachment, Commissioners were appointed for local inspection and to submit report with regard to encroachment.

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For the reasons recorded above and in the peculiar facts and circumstances of the present case, I am of the view that the trial Court committed an error in allowing

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