Allowed

Raghvendra v. Mahammad Patel

Karnataka HC28 Nov 2024WP/200625/2024

Case brief

AI extract

What is this about?

Plaintiff challenged rejection of his Order 26 Rule 9 CPC application for appointment of a Court Commissioner to conduct local inspection regarding alleged encroachment of suit property. The High Court held the Commissioner's report was relevant evidence to elucidate the dispute, set aside the impugned order and allowed the application.

What did the court decide?

Impugned order rejecting I.A.No.5 set aside; I.A.No.5 under Order 26 Rule 9 CPC allowed with liberty to file memos, objections and examine/cross-examine the Commissioner.

Raghvendra Vs Mahammad Patel — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA,

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KALABURAGI BENCH

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DATED THIS THE 28^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO.200625 OF 2024 (GM-CPC)

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BETWEEN:

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RAGHVENDRA S/O NARASIMHABHATTA JOSHI, THROUGH HIS GPA HOLDER, LAXMANARAO S/O SHESHAGIRIRAO DESHAPANDE, AGE 62 YEARS, OCCUPATION BUSINESS, RESIDENCE OF MAHAMTESH NAGAR, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA – 586 212.

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…PETITIONER (BY SRI. RAVI B. CHAWAN FOR SRI. ANIL RATHOD, ADVOCATES)

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AND:

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Digitally signed by LUCYGRACE Location: High Court Of Karnataka

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MAHAMMAD PATEL S/O HUSENPATEL PATEL @ BIRADAR, AGE 30 YEARS, OCCUPATION PRIVATE WORK, RESIDENCE OF MAHAMTESH NAGAR, BEHIND SHARADA SCHOOL MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586 212.

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…RESPONDENT

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(BY SRIRAVI.B. CHAWAN FOR SRI. ANIL RATHOD, ADVOCATES)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE FORM OF CERTIORARI OR TO SET ASIDE ORDER PASSED BY THE LEARNED CIVIL JUDGE AND JMFC MUDDEBIHAL IN OS NO.347/2015 VIDE ANNEXURE J DATED 19.01.2024 ON IA NO.5 IN OS NO.347/2015 AND CONSEQUENTLY ALLOW I.A NO. 5 FILED BY THE PETITIONER IN OS NO.347/2015 IN INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP , THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR)

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This petition by plaintiff No.1 in O.S.No.347/2015 on the file of the Civil Judge & JMFC, Muddebihal is directed against the impugned order dated 19.01.2024 whereby the application – I.A.No.5 filed by the petitioner – plaintiff under Order 26 Rule 9 CPC for appointment of Court Commissioner to conduct local inspection of the suit schedule property was rejected by the Trial Court.

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Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record

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A perusal of the material on record will indicate that petitioner – plaintiff instituted the aforesaid suit against the respondent – defendant for mandatory injunction, permanent injunction and other reliefs in relation to the suit schedule immovable property. The said suit is being contested by the respondent – defendant. After completion of trial, the petitioner –

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plaintiff filed the instant application seeking appointment of Court Commissioner to conduct local inspection of the suit schedule property. It is specifically contended by the petitioner that since there is a dispute as regards the alleged encroachment of the suit schedule property by the respondent – defendant, it was just and expedient to appoint Commissioner to elucidate the issue in controversy between the parties. The said application having been opposed by the respondent – plaintiff, the Trial Court proceeded to pass the impugned order rejecting the application on the sole ground that the same was filed at the stage of arguments belatedly, which is impermissible in law. Aggrieved by the impugned order, petitioner is before this Court by way of the present petition.

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Learned counsel for the petitioner submits that in the light of the subsequent judgment of the Apex Court in the case of Rahul S. Shah Vs. Jinendra Kumar Gandhi – (2021) 6 SCC 418 and the judgment of this Court in Shadaksharappa v Kumari Vijayalaxmi – WP 201274/2023 dated 24.01.2023, the Trial Court clearly fell in error in rejecting the application filed by the petitioner especially when the petitioner had alleged encroachment by the respondent – defendant, who had disputed and denied the said

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allegations warranting appointment of a court commissioner to conduct local inspection which were for appointment of Court Commissioner.

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Per contra, learned counsel for respondent submits that apart from the fact that there are various admissions in the cross-examination of PW1 (plaintiff), the survey of the suit schedule property had been done even prior to filing of the suit and as such, question of appointment of one more Court Commissioner to conduct survey of the suit schedule property would not arise.

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In my considered opinion, in the light of the judgment of the Apex Court in Rahul’s case supra and this Court in Shadaksharappa’s case supra coupled with the fact that there is dispute as regards alleged encroachment of the suit schedule property by the respondent – defendant, who seriously disputes and denies the same, the Trial Court clearly fell in error in rejecting the application without appreciating that the report of the Court Commissioner was relevant and necessary to elucidate the issue in controversy between the parties and consequently, the impugned order passed by the Trial Court deserves to be set aside and the application filed by the petitioner deserves to be allowed.

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Insofar as the contention urged by the learned counsel

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for the respondent that the petitioner has made various admissions in the cross-examination and that the survey had been conducted even prior to filing the suit is concerned, the said contention would lie in the realm of appreciation of evidence and rival contentions urged by both sides at the time of final disposal of the suit and appointment of Court Commissioner and obtaining his report would constitute one more piece of evidence available to the Court for the purpose of effective adjudication of the suit and consequently, this contention urged by learned counsel for the respondent cannot be accepted.

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In the result, I pass the following:

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ORDER

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(i) The petition is hereby allowed .

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(ii) The impugned order dated 19.01.2024 passed

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on I.A.No.5 in O.S.No.347/2015 by the Civil Judge & JMFC, Muddebihal, is hereby set aside.

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(iii) I.A.No.5 filed by the petitioner under Order 26 Rule 9 CPC is hereby allowed.

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(iv) Liberty is reserved in favour of the parties to file their respective memos of instructions before the Court Commissioner.

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(v) Liberty is also reserved in favour of the parties to file their objections to the Commissioner’s report and examine / cross-examine him, if they so desire.

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(vi) All rival contentions on all aspects of the matter

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are kept open and no opinion is expressed on the same.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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List No.: 1 Sl No.: 16

Raghvendra v. Mahammad Patel

Case brief

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Raghvendra v. Mahammad Patel

Case brief

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