Plaintiff challenged a Trial Court order setting aside a Court Commissioner's report and appointing a Taluka Surveyor afresh in an injunction suit, on the ground that the Commissioner was not examined. The High Court found no illegality since the two reports were mutually contrary, 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 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 5799 OF 2022 (GM-CPC)
BETWEEN:
SRI. T.L. RADHAKRISHNA S/O LATE THAMMANNA AGED ABOUT 63 YEARS R/AT GANGAMMANAGUDI BEEDI, PAVAGADA TOWN TUMKUR DISTRICT - 561202
…PETITIONER
(BY SRI: NAGARAJA .S., ADVOCATE)
AND:
Digitally signed by PAVITHRA N Location: high court of karnataka
THE RESPONDENTS NO.2 TO 4 ARE R/AT GANGAMMANAGUDI BEEDI
PAVAGADA TOWN
TUMKUR DISTRICT - 561 202
…RESPONDENTS
(BY SRI: GANGADHARAPPA .A.V., ADVOCATE FOR R1; R2 TO 4 - D/W - V/O DT.9/6/23)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20.01.2022 PASSED BY THE PRINCIPAL CIVIL JUDGE (JR.DVN) AND JMFC AT PAVAGADA ON COMMISSIONER REPORT IN O.S.NO.316/2011 VIDE ANNEXURE-G AND ETC.,
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
Plaintiff No.3 in OS No.316 of 2011 on the file of the learned Principal Civil Judge (Jr.Dn.) and JMFC at Pavagada, is seeking to issue writ of certiorari to quash the order dated 20.01.2022 setting aside the Commissioner's report dated 19.03.2021 and 25.08.2021 and appointing Taluka Surveyor as Court Commissioner.
the earlier report without there being any basis and without examining the Court Commissioner and the Surveyor who submitted the report. The Court could have formed some opinion before passing the order and in the absence of same, the impugned order suffers from illegality. He submits that in view of Order XXVI Rule 10(2) of CPC, if defendants are not satisfied with the Commissioner's report, they could have opted for calling Commissioner as witness for cross examination. The Trial Court has not adopted such procedure. Hence, he prays for allowing the petition.
Commissioner's report and the sketch in light of the objections raised by the defendants and prima facie, it was found that the report submitted by the Surveyor and by the advocate Commissioner were contrary to one another. They are not supporting with one another. Therefore, the Trial Court was left with no other alternative to set aside the said report. There is no illegality or perversity in the order passed by the Trial Court. Accordingly, he prays for dismissal of the petition.
report in light of the objection raised by the defendants and prima facie it found that the report submitted by the Surveyor and Commissioner are actually contrary to one another giving completely different picture. Under such circumstances, the Trial Court proceeded to set aside the Commissioner's report. When such prima facie impression was created in the mind of the Court that the report of the Commissioner and the Surveyor do not complement one another, the Trial Court was right in setting aside the Commissioner's report. I do not find any reason to interfere with the same. The Trial Court has not only set aside the Commissioner's report, but it proceeded to appoint fresh Commissioner i.e., Taluka Surveyor to visit, measure and to submit his report. Under such circumstances, the plaintiffs will not be prejudiced in any manner.
Hence, the writ petition is dismissed.
Sd/JUDGE
*bgn/List No.: 1 Sl No.: 40
1 issue framed by the court
Whether the Trial Court could set aside the Commissioner's report without examining the Commissioner, where the Commissioner's and Surveyor's reports were contradictory.
3 provisions across 2 enactments
Sri. T.L. Radhakrishna
Sri. T.S. Venkataram
Sri. T.L. Srinivas
Sri. T. Sriranganatha
Sri. Sathyaprakash
M G Uma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
