P. v Joseph Since Deceased by His Lrs Mr P J Francis Vs Mr. Doddanaiah

MRS. N. SHEELA W/O G. HULIAPPA AGED ABOUT 55 YEARS R/A NO 55/1 (NEW NO.3) MICHEALPAYA, 4TH CROSS INDIRANAGAR, BENGALURU - 560 038. REP BY HER HUSBAND AND GPA HOLDER SHRI G HULIAPPA S/O LATE GANGANNA AGED ABOUT 62 YEARS.

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…RESPONDENTS

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(BY SRI H.R. ANANTHA KRISHNA MURTHY, ADV.)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 27/02/2024 ON INTERLOCUTORY APPLICATION IA NO. 2/2023 FILED BY THE RESPONDENTS UNDER ORDER XXVI RULE 9 R/W SECTION 151 CPC IN OS NO. 26259/2014 PASSED BY THE XXVIII ADDL. CITY CIVIL JUDGE, MAYOHALL UNIT, BENGALURU (CCH-29), WHICH IS PRODUCED AS ANNEXURE-A.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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1. The Petitioners are before this Court under Article

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227 of the Constitution of India with a prayer to set aside the

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order dated 27.02.2024 passed on I.A.No.2 of 2023 in O.S.No.26259 of 2014 by the Court of XXVIII Addl. City Civil Judge, Mayohall Unit, Bengaluru.

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Heard the learned counsel appearing for the parties.

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The respondents herein had filed O.S.No.26259 of

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2014 under Order I Rule 8 R/w Order VII Rule 1 of CPC with a prayer to declare that road marked in red colour and denoted by letters 'ABCD' is a road dedicated to the users of public and that the same is an easement of necessity and a consequential relief of permanent injunction is also sought against the defendant in the said suit. The defendant has filed written statement and had opposed the suit claim. When the suit was

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at the stage of addressing arguments, I.A.No.2 of 2023 was filed on behalf of the plaintiffs under Order XXVI Rule 9 R/w Section 151 pf CPC with a prayer to appoint a Court Commissioner for local inspection. The said application was opposed by the defendant by filing objection and the trial Court vide the order impugned has allowed the said application and

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being aggrieved by the same, the defendant is before this Court.

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Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that the plaintiffs in O.S.No.25259 of 2014 had earlier filed O.S.No.3985 of 1993 against the defendant in respect of the very same property and the said suit was dismissed and the judgment and decree passed in O.S.No.3985 of 1993 has been confirmed by this Court in RFA No.233 of 2003. He submits that the plaintiffs had failed to prove in the earlier suit about existence of any road. Even in the present suit, the plaintiffs have not produced any material before the Court to show that there exists a road in the suit schedule 'E' property. He submits that with an intention to collect evidence, the present application is filed on behalf of the plaintiffs with a prayer to appoint court Commissioner for local inspection. The same is not permissible. The trial Court has erred in allowing the application.

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Per contra , learned counsel appearing for the respondents submits that the present suit is filed invoking order I Rule 8 of CPC. This Court while dismissing RFA No.233 of

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2003 has granted liberty to the plaintiffs in O.S.No.3985 of 1993 to file a suit in representative capacity. He submits that, the present suit is filed with a prayer to declare that road existing in schedule 'E' property is a public road and the same is an easement of necessity. He has placed reliance on the judgment of Co-ordinate Bench of this Court in the case of SRI SHADAKSHARAPPA V. KUMARI VIJAYALAXMI - KCCR-

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2023-1-637 and submits that in normal circumstances in a case where easmentary rights is claimed, the Courts should appoint a court commissioner for the purpose of effective adjudication of the dispute involved in the suit.

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Perusal of the material on record would go to show that, O.S.No.3985 of 1993 was filed by some of the plaintiffs in the present suit against the defendant seeking similar relief and the said suit was dismissed. As against the judgment and decree passed in O.S.No.3985 of 1993, the plaintiffs had approached this Court in RFA No.233 of 2003 and this Court having observed that the suit which was filed by the plaintiffs in O.S.No.3985 of 1993 in their individual capacity was not maintainable, had confirmed the judgment and decree passed

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in the said suit with an observation that it is always open for

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the plaintiffs or any other person to bring a suit in representative capacity in compliance of order I Rule 8 of CPC. It is under these circumstances, the present suit in O.S.No.25259 of 2014 was filed invoking order I Rule 8 of CPC.

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Undisputedly, the parties have led evidence in the present suit and when the suit was at the stage of arguments, the present application was filed under Order XXVI Rule 9 of CPC on behalf of the plaintiffs with a prayer to appoint court commissioner to inspect the suit schedule 'E' property for local inspection as per the memorandum of instruction to be filed by the parties.

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The Co-ordinate Bench of this Court in the case of SRI SHADAKSHARAPPA (supra) in paragraphs no.14 and 21 has observed as follows:-

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"(14.) The discretion, though lies with the court, as to appoint the Commissioner before the trial of after the trial, the decision must be taken with due regard to the possibility of reducing or eliminating the need to record the oral evidence of witnesses to prove an issue which could be effectively decided with the aid of the

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report. More often than not, in disputes relating to the existence of pathway, stream, pond, well, or disputes relating to the boundary between adjoining holders, encroachment, easement of air and light, construction of building in violation of setback rules, or relating to the authenticity of a document, signature/thumb impression to name a few by way of illustration, a report secured before the trial may cut short the trial in as much as the party relying upon the report may not examine multiple witnesses to prove the matters covered by the report. The party may simply rest his case based on his evidence and the report. In a given case, the appointment of the Commissioner before the commencement of the trial may facilitate a focused trial. In the case of Bhimappa Rayappa Chougala v. Shrikant, 2014 SCC OnLine Kar 12277: (2014) 2 KCCR 1652 at page 1653, the Co-Ordinate Bench of this court has held as under:

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"4. xxx Only if the plaintiffs can show that the defendants have encroached upon their property, they would be entitled to the relief. Any amount of oral evidence is not a substitute or sufficient to prove the encroachment. To cut short the litigation to reduce recording evidence, the trial Court in its wisdom, thought it fit to appoint a Commissioner even before the commencement of the trial. That is how the duration of the litigation could be curtailed and speedy disposal of the civil matter could be achieved."

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"(21.) Having examined the provisions referred to above and given the fact that Order XXVI of the Code of Civil Procedure is often invoked in the trial court, this court is of the view, broadly speaking in the following cases, the appointment of an appropriate Commissioner as provided under Order XXVI of the Code is desirable.

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(i) The dispute relating to the easement of air, light, pathway, road, watercourse, etc.

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(ii) The dispute relating to the boundary, encroachment;

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(iii) The dispute relating to forgery;

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(iv) The dispute relating to the existence or otherwise of a stream, pond drainage, watercourse, road, pathway, pollution or nuisance.:".

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A court commissioner can be appointed by a Court

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either suo motu or at the request of parties if the Court finds

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the oral and documentary evidence placed on record is not sufficient to effectively adjudicate the dispute between the parties. The present suit is filed for declaration of easmentary rights in respect of public pathway and having regard to the judgment in the case of SRI SHADAKSHARAPPA (supra) wherein it is held that it is appropriate to appoint a court commissioner in a suit filed relating to easmentary of a right, pathway , road, water board etc., I am of the opinion that the

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Trial Court was fully justified in allowing the application. I do not find any illegality or irregularity in the order impugned and therefore I decline to entertain this petition.

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Accordingly, the writ petition is dismissed.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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NMS

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List No.: 1 Sl No.: 15

P. v. Joseph Since Deceased by His Lrs Mr P J Francis v Mr. Doddanaiah

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P. v. Joseph Since Deceased by His Lrs Mr P J Francis v Mr. Doddanaiah

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