Disposed

Mr. K. Ramachandra Shenoy v. Sri. J. Panduranga Nayak

Karnataka HC24 Oct 2024WP/10608/2024

Case brief

AI extract

What is this about?

This Writ Petition challenges an order where the Trial Court concluded the Commissioner's report was fault-free before the Commissioner was examined. The High Court directed the Trial Court to record the Commissioner's evidence based on objections before accepting the report.

What did the court decide?

The writ petition is disposed of by directing the Trial Court to record the evidence of the Commissioner based on objections before considering the report.

Mr. K. Ramachandra Shenoy Vs Sri. J. Panduranga Nayak — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:43062 WP No. 10608 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 10608 OF 2024 (GM-CPC)

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BETWEEN:

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MR. K. RAMACHANDRA SHENOY S/O K. NARASIMHA SHENOY, AGED ABOUT 70 YEARS, RESIDING AT SRINIVASA NILAYA GOWRIMUTT STREET, MANGALURU D.K.DISTRICT, PIN - 575 001

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…PETITIONER

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(BY SRI. G. RAVISHANKAR SHASTRY, ADVOCATE)

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AND:

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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SRI. J. PANDURANGA NAYAK S/O LATE SRINIVASA NAYAK, AGED ABOUT 87 YEARS RESIDING AT STANDARD BAKERY COMPOUND, GOWRIMUTT STREET, MANGALURU D.K.DISTRICT, PIN - 575 001.

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…RESPONDENT

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 20.01.2024 IN O.S NO.362/2019 ON COMMISSIONER REPORT PASSED BY THE COURT OF THE IV ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU CERTIFIED COPY OF WHICH IS PRODUCED AT ANNEXURE-A.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2024:KHC:43062 WP No. 10608 of 2024

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The defendant in O.S. No.362/2019 on the file of the IV Additional Civil Judge and JMFC., Mangaluru, (henceforth referred to as ‘the Trial Court’) has filed this petition challenging an order dated 20.01.2024 by which the Trial Court examined the report of the Commissioner in view of the objections filed by the defendant and passed orders.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioner herein was the defendant while the respondent herein was the plaintiff before the Trial Court.

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The suit in O.S. No.362/2019 was filed for mandatory injunction to direct the defendant to remove the encroached portion of the roof of his building on the northern side of the plaint schedule property and for perpetual injunction to restrain the defendant from trespassing into the suit schedule property.

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NC: 2024:KHC:43062 WP No. 10608 of 2024

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The plaintiff claimed that he was the owner of the suit property and that the defendant without leaving sufficient set back on the northern side of the suit schedule property, had commenced to put up construction on war footing thereby violating the building bye-laws. The defendant had allegedly laid the roof over the first floor of his building by blocking the free passage of air and light to the property of the plaintiff. The plaintiff, therefore, claimed that in view of such construction, there was every possibility of rain water gushing into his house and hence, sought the reliefs mentioned above.

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The defendant contested the suit and denied the averments made in the plaint. He also denied the entitlement of the plaintiff to the suit reliefs.

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Based on an application filed by the plaintiff, the Trial Court appointed a Commissioner, who submitted his report. The defendant submitted his objections to the report.

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The Trial Court considered the report of the Commissioner in terms of the order dated 20.01.2024 and held “it is well settled law that, unless the court finds any illegality with the report of the court commissioner and if the court is not

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NC: 2024:KHC:43062 WP No. 10608 of 2024

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feasible to adjudicate the matter without the help of the commissioner report, the court cannot direct the commissioner to revisit the spot for local inspection. This court does not find any fault in the report of commissioner. Under such an event, contention of both the parties will be looked into at the time of passing of judgment. At this juncture, parties are at liberty to examine the court commissioner to test credibility of the report.”

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Being aggrieved by the said order, the defendant is before this Court.

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Learned counsel for the defendant contended that

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the Trial Court committed an error in holding that the report of the Commissioner does not suffer from any infirmity or fault. He contends that this would amount to prejudging the correctness of the report of the Commissioner even before the Commissioner was examined and even before the report of the Commissioner was accepted in the manner known to law. Therefore, he contends that the finding of the Trial Court be set aside and appropriate direction be issued to the Trial Court to look into the report of the Commissioner only after the

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5 - NC: 2024:KHC:43062 WP No. 10608 of 2024

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Commissioner enters the witness box and justifies the correctness of his findings.

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I have considered the submissions of the learned counsel for the petitioner and perused the plaint and the written statement as well as the report of the Commissioner and the objections filed by the defendant to it as well as the impugned order.

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It is well settled that once the report of a Commissioner is objected by any of the parties to the suit, the course for the Trial Court to adopt is as provided under Order XXVI Rule 10 of the Code of Civil Procedure, 1908. It is only after perusing the evidence of the Commissioner that the Court can decide upon accepting the report of the Commissioner. Therefore, the finding of the Trial Court that it did not find any fault with the report of the Commissioner, could not have been recorded even before the Commissioner had entered the witness box.

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In that view of the matter, this writ petition is disposed off by directing the Trial Court to record the evidence of the Commissioner based on the objections raised

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NC: 2024:KHC:43062 WP No. 10608 of 2024

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by the defendant and thereafter consider accepting the report

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of the Commissioner as part of the record and thereafter, proceed with the suit - O.S No.362/2019 in accordance with

law.

Sd/(R. NATARAJ)

JUDGE

SMA

List No.: 1 Sl No.: 41

Mr. K. Ramachandra Shenoy v. Sri. J. Panduranga Nayak

Case brief

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Mr. K. Ramachandra Shenoy v. Sri. J. Panduranga Nayak

Case brief

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