Plaintiff challenged an order appointing an advocate and Taluk surveyor as Commissioners for local inspection in an injunction suit over boundary disputes. The High Court held the inspection would aid adjudication without collecting evidence and dismissed the writ petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC-D:16477 WP No. 112922 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.112922 OF 2019 (GM-CPC)
BETWEEN:
DEVENDRAPPA S/O. NINGAPPA BOMMANALLI, AGED ABOUT: 45 YEARS, OCC: AGRICULTURE, R/O: KAVALAKOPPA, TQ: MUNDGOD, DIST: UTTARA KANNADA.
…PETITIONER
(BY SRI VIDYASHANKAR G. DALWAI, ADVOCATE)
AND:
Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka
DIST: UTTARA KANNADA.
…RESPONDENTS
(BY SRI GIRISH A. YADAWAD AND SRI C.J.POOL, ADVOCATES FOR R1; NOTICE TO R2 IS SERVED, BUT UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, WRIT IN THE NATURE OF CERTIORARI TO QUASH ORDER DATED 15.07.2019 ON I.A.NO. XI WHICH FILED U/O.XXVI RULE 9 R/W. SEC.151 OF C.P.C FILED BY THE 1ST RESPONDENT HEREIN IN O.S.NO.53/2014 ON THE FILE OF COURT OF CIVIL JUDGE, MUNDGOD VIDE ANNEXURE-F AND DISMISS I.A.NO.XI WHICH FILED U/O.XXVI RULE 9 R/W.SEC.151 OF C.P.C FILED BY THE 1ST RESPONDENT HEREININ O.S.NO.53/2014 ON
NC: 2024:KHC-D:16477 WP No. 112922 of 2019
THE FILE OF COURT OF CIVIL JUDGE, MUNDGOD VIDE ANNEXURE-D AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present writ petition is filed challenging the order dated 15.07.2019 passed on IA.No.11 in OS.No.53/2014 passed by the Civil Judge, Mudgod1 .
1 Hereinafter referred to as “ Trial Court’
2 Hereinafter referred to as “CPC”
15.07.2019 allowed IA.No.11. Being aggrieved the present writ petition is filed.
evidence of the parties have been concluded and hence, the report of Commissioner will not tantamount to collection of
evidence. It is further contended that the Trial Court had adequately appreciated the factual matrix of the matter and allowed the application which are ought not to be interfered with by this Court in the present writ petition.
been considered and the material on record have been perused.
“9. Heard both the counsels, perused the application, objection and documents. On careful consideration of the submission of the counsels, it is clear that, the disputed fact between the parties is with respect to the boundaries of the properties. The plaintiff has filed the suit alleging that the defendants are intending to interfere in the suit property by encroaching it. The main question of dispute has arisen based on the boundary exiting in between the properties of the plaintiff and defendants. In such a situation for the proper adjudication of the suit, it is very much important to ascertain the boundary in between the property of the plaintiff and defendants. Further the report of the commissioner will also be helpful to appreciate the evidence already on record. Therefore, the report of the commissioner is helpful in deciding the real controversy between the parties. Further as the evidence of both the parties is closed it will not amount to collection of evidence. In so far as earlier survey report is concerned the survey authorities have filed the report along with the sketch relating to the suit property. But the said report is not helpful in adjudicating the controversy between the parties. The present application is filed to measure and fix the boundaries of properties of the plaintiffs and defendants. If the properties of the plaintiffs and defendants are surveyed and boundaries are fixed, it would be helpful for the court to analyze and
appreciate the evidence already available before the court and adjudicate the suit. Unless the report is filed by the commissioner it would be difficult for the court to consider the serious dispute with regard to the area, boundaries of the land in question and existence of trees over it. Where there is conflicting versions regarding the location of the suit property, no amount of oral and documentary evidence may enable this court to adjudicate the matter.
10. By considering the above discussion court is of the considered view that, for proper adjudication of matter and in the best interest of parties, to avoid further litigation, the appoint of court commissioner in no way effect the right and interest of the plaintiff nor cause loss or hardship.”
(emphasis supplied)
said Commissioner would aid of the Trial Court in effectively adjudicating upon the issues that arise for consideration in the suit.
3 Hereinafter referred to as “ILR 2023 KAR 3983”
NC: 2024:KHC-D:16477 WP No. 112922 of 2019
dismissed as has being devoid of merits.
Sd/(C.M. POONACHA) JUDGE
PNV CT-ASC List No.: 1 Sl No.: 58
1 issue framed by the court
Whether a Commissioner for local inspection under Order XXVI Rule 9 CPC could be appointed after conclusion of evidence to ascertain disputed boundaries.
Colour shows how this judgement treated each authority
Shadaksharappa vs Kumari VijayalaxmiRelied on¶11
ILR 2023 KAR 3983 · Who else cites this
3 provisions across 2 enactments
Devendrappa s/o Ningappa Bommanalli
Ashok s/o Tippanna Bommanalli
Smt. Susheelavva Kom Ningappa Bommanalli
C.M. Poonacha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
