Allowed

The Executive Engineer and Anr. v. Late K. Srinivasa S/O K. Thippanna Since Deceased by His Lrs

Karnataka HC27 Nov 2024WP/201218/2022

Case brief

AI extract

What is this about?

Defendants in an injunction suit challenged the Trial Court's suo motu rejection of the Court Commissioner's report and its later order appointing a new Commissioner despite I.A.No.2 having been allowed earlier with finality. The High Court held both orders illegal and erroneous, set them aside, keeping contentions on the Commissioner's report open.

What the court decided

AI extract

The Executive Engineer and Anr. Vs Late K. Srinivasa… — 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 27^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. 201218 OF 2022 (GM-CPC)

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BETWEEN:

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THE EXECUTIVE ENGINEER KARNATAKA SOLAR PLANT POWER CORPORATION, YAPALADINNI, AT YAPALADINNI, TQ. AND DIST. RAICHUR..

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THE KARNATAKA SOLAR PLANT POWER CORPORATION YAPALADINNI, BY IT'S MANAGING DIRECTOR,

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KARNATAKA POWER CORPORATION LIMITED, AT YAPALADINNI, TQ. AND

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DIST. RAICHUR.

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…PETITIONERS

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(BY SRI. ASHOK R KALYANASHETTY,ADVOCATE)

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AND:

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Digitally

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signed by LUCYGRACE Location: HIGH COURT OF KARNATAKA

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LATE K. SRINIVASA S/O K. THIPPANNA SINCE DECEASED BY HIS LRS 1 TO 5

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SMT. PADDAMMA W/O LATE K. SRIIVASA AGED ABOUT 41 YEARS, OCC. AGRI AND HOUSE HOLD.

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SMT. KAVERI W/O SHRI EARESH (D/O LATE K.SRINIVASA) AGED ABOUT 23 YEARS, OCC. HOUSEHOLD.

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MISS. DAKSHAYANI D/O LATE K. SRIIVASA AGED ABOUT 19 YEARS, OCC.HOUSE HOLD.

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2 - ��

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KUMARI MONIKA D/O LATE K. SRIIVASA AGED ABOUT 15 YEARS, OCC.STUDENT.

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KUMARI VIJAYALAKSHMI D/O LATE K. SRIIVASA AGED ABOUT 13 YEARS, OCC.STUDENT.

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RESPONDENTS 4 AND 5 BEING MINORS ARE REPRESENTED BY THEIR MINOR GUARDIAN AND MOTHER

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SMT. PADDAMMA, THE RESPONDENT-1.

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SHRI K. VIJAYAKUMAR S/O LATE K. THIPPANNA, AGED ABOUT 42 YEARS,

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OCC. AGRI.

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SHRI K. GOVARDHAN S/O LATE K. THIPPANNA, AGED ABOUT 40 YEARS, OCC. AGRI

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RESPONDENTS 1 TO 7 ARE ALL R/O YAPALADINNI-584 102.

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…RESPONDENTS

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(VIDE ORDER DATED: 27.11.2024 NOTICE TO R-1 TO R-3 & R-6 ARE HELD SUFFICIENT R-7 SERVED, R-4 AND R-5 ARE MINOR REPRESENTED BY R-1

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THIS WRIT PETITION FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 4.3.2022 AT ANNEXURE - M PASSED BY THE ADDITIONAL CIVIL JUDGE, RAICHUR IN OS NO. 367/2011 ON IA II APPOINTING THE TALUK SURVEYOR AS THE COURT COMMISSIONER IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR FINAL HEARING, 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

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

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This petition is preferred by the defendants in O.S.No.367/2011 pending on the file of the Additional Civil Judge, Raichur (for short “the Trial Court”).

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Heard learned counsel for the petitioners and perused the material on record.

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The respondents having been served with notice of this petition, have chosen to remain unrepresented and have not contested the petition.

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A perusal of the material on record will indicate that the respondents-plaintiffs instituted the aforesaid suit against the petitioners-defendants for permanent injunction and for other reliefs in relation to the suit schedule immovable property. The said suit is being contested by the petitioners-defendants. During the pendency of the suit, respondents-plaintiffs filed I.A.No.2 under Order 26 Rule 9 CPC seeking appointment of Court Commissioner and the same came to be allowed vide order dated 09.04.2014. In pursuance of the same, the Taluk Surveyor was appointed as a Court Commissioner and he submitted the report and his evidence

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was recorded and also he was cross-examined by the parties. Subsequently, the Trial Court suo moto passed an order on 16.01.2020 rejecting the Commissioner’s Report and also directed I.A.No.2 to be kept in abeyance till conclusion of evidence of both sides; in other words, the earlier order passed allowing I.A.No.2 was nullified by the Trial Court by way of the impugned order dated 16.01.2020, which is called in question in the present petition.

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Subsequently, on 17.02.2022, respondents filed a memo requesting appointment of one more Court Commissioner in terms of I.A.No.2, which was kept in abeyance vide impugned order dated 16.01.2020. The said memo having been opposed by the petitioners, the Trial Court proceeded to pass subsequent impugned order dated 04.03.2022 holding that I.A.No.2 had been kept in abeyance by virtue of the earlier impugned order and consequently, allowing I.A.No.2 and directing appointment of a new Court Commissioner for the purpose of conducting local inspection. Aggrieved by the impugned orders dated 16.01.2020 rejecting the Commissioner’s Report and keeping I.A.No.2 in abeyance as well as subsequent impugned order dated 04.03.2022 once again allowing I.A.No.2, thereby appointing a fresh/new Court

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Commissioner, the petitioners are before this Court by way of the present petition.

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As stated supra, the respondents having been served with notice of this petition, have chosen to remain unrepresented and have not contested the petition.

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A perusal of the impugned order dated 16.01.2020 will indicate that it is an undisputed fact that the Court Commissioner appointed pursuant to allowing I.A.No.2 vide order dated 09.04.2014 and conducted local inspection and submitted his report, pursuant to which he was examined/cross-examined by both parties. Under these circumstances, there was no occasion/warrant for the Trial Court to suo moto reject the Commissioner’s report and revive I.A.No.2 by keeping the same in abeyance, especially when the application, I.A.No.2 had already been allowed and the said order allowing I.A.No.2 dated 09.04.2014 had attained finality and become conclusive and binding upon both parties, who had not only filed objections to the Commissioner’s report, but had also examined/cross-examined him. Under these circumstances, it is clear that the Trial Court committed a patent illegality in suo moto rejecting the

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Commissioner’s report and keeping I.A.No.2 in abeyance despite the same having been allowed earlier on 09.04.2014 and consequently, the impugned order dated 16.01.2020 deserves to be set aside.

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In so far as the subsequent impugned order dated

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04.03.2022 allowing I.A.No.2 and appointing fresh/new Court Commissioner is concerned, as stated supra, this impugned order and the findings and observations recorded therein are clearly erroneous and unreasoned in as much as the said order is based on the previous impugned order rejecting the Commissioner’s Report; in addition thereto, the Trial Court clearly misdirected itself in referring to the provisions contained in Order 22 Rule 10 CPC and relevant case law in this regard, without appreciating that the same were neither relevant nor material for the purpose of allowing I.A.No.2 once again when the same had already been allowed by the Trial Court vide order dated 09.04.2014 and the impugned order dated 16.01.2020 as already been held by me to be illegal and arbitrary deserves to be set aside. Under these circumstances, even the subsequent impugned order dated 04.03.2022 re-allowing/once again allowing I.A.No.2 has also

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occasioned failure of justice warranting interference by this Court in the present petition.

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In the result, I pass the following:

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ORDER

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(i) The Writ Petition is hereby allowed.

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(ii) The impugned order at Annexure-E dated 16.01.2020 passed in O.S.No.367/2011 by the Additional Civil Judge, Raichur and the impugned order at AnnexureM dated 04.03.2022 passed in O.S.No.367/2011 by the Additional Civil Judge, Raichur, are hereby set aside.

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(iii) All rival contentions between the parties on the report of the Court Commissioner and evidence recorded by him are kept open and no opinion is expressed on the same.

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BMC

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List No.: 1 Sl No.: 17

The Executive Engineer and Anr. v. Late K. Srinivasa S/O K. Thippanna Since Deceased by His Lrs

Case brief

What is this about?

What the court decided

The Executive Engineer and Anr. v. Late K. Srinivasa S/O K. Thippanna Since Deceased by His Lrs

Case brief

What is this about?

What the court decided

A compact analysis

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