Defendant No.1 in a suit for declaration of title and possession challenged the trial court's order appointing a Court Commissioner to measure neighbouring suit properties. The High Court held the commissioner's report would assist the trial court and cause no prejudice, 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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 52307 OF 2016 (GM-CPC)
BETWEEN:
NAGARAJAN JAYAKUMAR, S/O. LATE T.S.NAGARAJAN, AGED 56 YEARS, NO.139/FF2, HAYAGREEVA, KUVEMPU CROSS, BHEL-KENCHENAHALLI LAYOUT, BEHIND R.R.TEMPLE, RAJARAJESHWARINAGAR, BANGALORE - 560 098 PRESENTLY RESIDING AT NO.29, 13TH MAIN, KALIDASA LAYOUT, NEAR SRI RAGHAVENDRASWAMY TEMPLE, SRINAGAR, BANGALORE - 560 050 …PETITIONER
(BY SRI: ANANTHA NARAYANA .B.N., AND SRI: D.G. CHINNAPPA GOWDA, ADVOCATES)
AND:
Digitally signed by PAVITHRA N Location: high court of karnataka
NC: 2024:KHC:4654 WP No. 52307 of 2016
BOTH 2(A) AND 2(B) ARE R/AT NO.36/1, 14TH MAIN ROAD, RAGHAVENDRA BLOCK, BANGALORE - 560 050
1 TO 3 ALL ARE R/AT NO.36/1, 14TH MAIN ROAD, RAGHAVENDRA BLOCK, BANGALORE - 560 050
…RESPONDENTS
(BY SRI: S. VISWESWARAIAH, ADVOCATE FOR R1 SRI: N.R. JAGADEESWARA, ADVOCATE FOR RF4 R2(A) - SERVED UNREPRESENTED R2(B) IS MINOR AND REPT. BY R2(A) V/O DT. 2/1/24, PETITION AGAINST DECEASED R3 IS DISMISSED AS ABATED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:16.9.2016 PASSED IN O.S.NO.1497/2014 ON THE FILE OF THE XXVII ADDL. CITY CIVIL JUDGE, BANGALORE CITY CIVIL JUDGE, BANGALORE CITY PASSED ON THE APPLICATION FILED BY THE R-1 TO 3 HEREIN UNDER ORDER 26 RULE 9 OF THE CODE OF CIVIL PROCEDURE APPOINTING A COURT COMMISSIONER TO MEASURE THE SUIT SCHEDULE PROPERTIES AS PER ANNEXURE-E TO THE W.P. DIRECT THE RESPONDENTS TO PAY TO PETITIONER COSTS OF THIS PROCEEDINGS AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The defendant No.1 in OS.No.1497/2014 on the file of the learned City Civil Judge, Bengaluru is seeking to quash the order dated 16.09.2016 allowing the application filed under Order 26 Rule 9 of CPC appointing the Court Commissioner to measure the disputed property and to report.
NC: 2024:KHC:4654 WP No. 52307 of 2016
the same. This fact was denied by defendant No.1 while filing the written statement. It is also stated that the 14th main road, Raghavendra block, Bangalore had been widen and at that time, the portion of the site bearing No.36 belonging to plaintiffs measuring 1.5 feetX30 feet was acquired and that may be the reason for the plaintiff to claim that the defendant has encroached a portion of property on the back side. When the plaintiff has examined as PW1, he categorically stated that his property measures 38 feet which is quite contrary to his contention taken in the plaint. There are fatal admissions in the evidence of the plaintiffs. After completion of evidence when the matter was posted for arguments, the present application was filed by the plaintiffs seeking appointment of the Commissioner, the trial Court ignoring the objections raised by the defendant allowed the said application. Since both the parties have led their evidence at length with specific contentions, the appointment of Commissioner was not necessary. It may lead to further complications. Therefore, he prays for setting aside the impugned order by allowing the petition.
NC: 2024:KHC:4654 WP No. 52307 of 2016
4. Per contra , learned counsel for the respondent
opposing the petition submitted that both the parties have led their evidence in support of the their contentions. Now the matter is posted for arguments. Appointment of Commissioner to measure the property to report about the factual situation would help the trial Court to arrive at a just conclusion. Therefore, the impugned order does not call for any interference. Accordingly, prays for dismissal of the petition.
NC: 2024:KHC:4654 WP No. 52307 of 2016
and submits his report, it will definitely help the trial Court to arrive at a just conclusion. It will not prejudice the right of either the plaintiffs or defendant No.1. The contentions taken by the plaintiffs and the defendant No.1 are already on record and even the oral evidence is already recorded in support of such contention. Under such circumstances, I do not find any justification for opposing appointment of Court Commissioner as it will definitely reduce the controversy between the parties. Hence, I do not find any merit in the petition.
Hence, the writ petition is dismissed.
Sd/JUDGE
BH
List No.: 1 Sl No.: 3
1 issue framed by the court
Whether the trial court erred in appointing a Court Commissioner under Order 26 Rule 9 CPC to measure the disputed property after both parties had led evidence.
2 provisions across 2 enactments
Nagarajan Jayakumar
Sreedhar Rao
Nagaraj (since deceased by LRS) - Geetha and Baby Hartipriya Nagaraj
Manjunath
The Commissioner, Bruhath Bangalore Mahanagara Palike
M G Uma
As recorded by the court registry
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