Dismissed

Sri L.Jayaram v. Smt Sharadamma

Karnataka HC7 Aug 2023WP/1890/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka held that the appointment of a Commissioner by the trial court to inspect the suit property for encroachment was valid and final. The court rejected the petitioner's plea that permitting construction activities made the inspection infructuous, dismissing the writ petition under Article 226.

What did the court decide?

Writ petition dismissed with costs of Rs. 10,000/- payable to the respondents within 15 days.

Sri L.Jayaram Vs Smt Sharadamma — Property and Title | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC:27789 WP No. 1890 of 2020

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 7^TH DAY OF AUGUST, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 1890 OF 2020 (GM-CPC)

¶7

BETWEEN:

¶8

SRI L. JAYARAM S/O LATE LAKKAPPA AGED 54 YEARS NO.96, 9^TH MAIN GOKULA 1^ST STAGE II PHASE BANGALURU-560 054.

¶9

…PETITIONER

¶10

(BY SRI. N SUKUMAR JAIN, ADV.)

¶11

AND:

¶12

SMT. SHARADAMMA W/O LATE BASAPPA AGED 76 YEARS

¶13

Digitally signed by NANDINI B G Location: HIGH COURT OF KARNATAKA

¶14

B S PRAKASH S/O LATE BASAPPA AGED 33 YEARS

¶15

BOTH ARE NO.96, 9^TH MAIN GOKULA 1^ST STAGE, II PHASE BANGALURU-560054.

¶16

…RESPONDENTS

¶17

(BY SRI. S BHARATH KUMAR, ADV.)

¶18

THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 04.12.2019 MARKED AS ANNX-N IN O.S.NO.1305/2018 ON THE FILE OF THE 31 ADDL. CITY CIVIL JUDGE BENGALURU CITY (CCH-14).

¶19

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

¶20

2 - NC: 2023:KHC:27789 WP No. 1890 of 2020

¶21

ORDER

¶22

The petitioner/defendant in O.S.No.1305/2018 on the file of the 31^st Additional City Civil Judge, Bangalore is before this Court under Article 227 of the Constitution of India , questioning the order dated 04.12.2019 by which, it is ordered to issue Commissioner warrant.

¶23

Heard learned counsel Sri.Sukumar Jain for petitioner and learned counsel Sri.S.Bharath Kumar for respondents/plaintiffs. Perused the writ petition papers.

¶24

Learned counsel for the petitioner would submit that the plaintiffs/respondents filed I.A.No.3 under Order XXVI Rules 9 and 10 of CPC praying for appointment of Commissioner to inspect the suit schedule property with regard to alleged encroachment. By order dated 24.03.2018, I.A.No.3 was allowed appointing Commissioner. The said order was the subject matter of the writ petition before this Court in W.P.No.17545/2018. The said writ petition was disposed of as having become infructuous in terms of the memo dated 20.07.2019.

¶25

3 - NC: 2023:KHC:27789 WP No. 1890 of 2020

¶26

Learned counsel for the petitioner Sri.Sukumar Jain referring to the order dated 07.08.2018 in MFA No.6248/2018 would submit that on the submission of both the parties, this Court observed that further construction activities insofar as finishing works to the building taken up by the appellant would be subject to the outcome of the proceedings in O.S.No.1305/2018 and the appellant will not claim equities for such activities. Since the construction was permitted subject to the outcome of the suit, the petitioner proceeded with construction activities. When this Court permitted construction work, the purpose of appointing Commissioner would not survive for consideration and accordingly, it has become infructuous. Therefore, the trial Court could not have issued Commissioner Warrant. Thus, he prays for allowing the writ petition setting aside the issuance of Commissioner Warrant by impugned order dated 04.12.2019.

¶27

¶28

NC: 2023:KHC:27789 WP No. 1890 of 2020

¶29

Per contra, learned counsel for the respondents/ plaintiffs would submit that the order dated 24.03.2018 on I.A.No.3 for appointment of Commissioner has become final and the order issuing Commissioner Warrant in pursuance of the said order is proper and correct. Learned counsel would submit that the Commission under I.A.No.3 was sought to inspect the suit schedule property to find out the alleged encroachment by the defendant/petitioner herein. Thus, he prays for dismissal of the writ petition.

¶30

Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that no ground is made out to interfere with the impugned order and the writ petition is liable to be rejected.

¶31

I.A.No.3 was filed by the respondents/plaintiffs under Order XXVI Rule 9 of CPC with a specific purpose to inspect the spot, measure the property of the plaintiffs and defendant and submit report as to whether there is encroachment over the suit schedule property. The said application was allowed by order dated 24.03.2018

¶32

5 - NC: 2023:KHC:27789 WP No. 1890 of 2020

¶33

permitting appointment of Commissioner. The said order was the subject matter of writ petition before this Court in W.P.No.17545/2018 and the said writ petition was disposed of as having become infructuous. By virtue of dismissal of the writ petition, the order appointing Commissioner has become final and in pursuance of the said order, the trial Court is justified in passing order dated 04.12.2019 issuing Commissioner Warrant.

¶34

The contention of the learned counsel for the petitioner that by virtue of order passed in MFA No.6248/2018 wherein order granting injunction was challenged permitting the petitioner/defendant to proceed with the construction, the order appointing Commissioner has become infructuous cannot be accepted since order appointing commissioner is not set aside and it remains. It is the further contention of the learned counsel for the petitioner that the respondents/ plaintiffs have sought appointment of Commissioner only with regard to construction and not for any other purpose. As this Court

¶35

6 - NC: 2023:KHC:27789 WP No. 1890 of 2020

¶36

permitted construction, appointment of Commissioner would no more survive for consideration. The contention of the learned counsel for the petitioner is misplaced.

¶37

From a perusal of order appointing Commissioner, it is clear that appointment of Commissioner was to inspect the suit schedule property and to submit a report as to whether there is any encroachment and whether there is any construction over the encroached portion. Filing of this writ petition appears that the defendant intends to protract the proceedings in O.S.No.1305/2018, so as to protect his illegal construction.

¶38

For the reasons recorded, the above writ petition stands dismissed with cost of Rs.10,000/- payable to the respondents/plaintiffs, within 15 days from today.

¶39

Sd/JUDGE

¶40

mpk/-* CT:bms

Sri L.Jayaram v. Smt Sharadamma

Case brief

What is this about?

What did the court decide?

Sri L.Jayaram v. Smt Sharadamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Smt Leelalakshmi Vs Smt Lolakshi

Smt Keerthika N M Vs Sri Bhushan C

Sri Y Nagaraj Vs Smt Anitha

Sri B v Harish Kumar Vs Stm Gurramma

B.G.Anantha Padmanabhacharya Vs a L Thimmaiah Char

M/S Puravankara Limited Vs Sri C Ashwathnarayana