Smt Narasamma Vs Sri M v Satishkumar

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD 28.01.2022, PASSED BY THE HONBLE PRL CIVIL JUDGE AND JMFC, CHIKKABALLAPURA, IN O.S.NO.16/2021 AT ANNEXURE-E OF ALLOWING THE APPLICATION I.A.NO.5.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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Defendants are before this Court in this writ petition filed under Article 227 of the Constitution of India, with a prayer to set aside the order dated 28.01.2022 passed on IA-5 in O.S.No.16/2021 by the Court of Prl. Civil Judge & JMFC, Chikkaballapura.

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Heard the learned Counsel for the parties.

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Respondents herein have filed O.S.No.16/2021 before the jurisdictional Civil Court at Chickaballapura, seeking the relief of declaration and mandatory injunction. In the said suit, the contesting defendants have filed their written statement and opposed the suit claim.

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IA-5 was filed under Order XXVI Rule 9 read with Section

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151 CPC on behalf of the plaintiffs to appoint the Panchayath

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3 - NC: 2025:KHC:49649 WP No. 11102 of 2022

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HC-KAR

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Development Officer of Doddapailagurki, Chikkaballapura Taluk,

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as Court Commissioner for the purpose of holding spot inspection, measuring the suit schedule property and submitting a report. Though the said application was opposed by the defendants by filing objections, the Trial Court vide the order impugned has allowed the said application. Being aggrieved by the same, the defendants are before this Court.

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Perusal of the material on record would go to show that, IA.no.5 was filed on behalf of the plaintiffs before the Trial Court even before the issues were framed based on the rival pleadings of the parties.

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An application for appointment of Commissioner can be normally entertained by a court, if the court is of the opinion that oral and documentary evidence placed on record by the parties is not sufficient for the purpose of effective adjudication of the dispute involved in the case.

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Appointment of Commissioner cannot be for the purpose of collection of evidence by any of the parties to the suit. The said aspect has not been appreciated by the Trial Court, which

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HC-KAR

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has allowed the application under Order XXVI Rule 9 CPC, which was filed even before the issues were framed in the suit. Under the circumstances, I am of the opinion that the order impugned needs to be set aside with liberty to the plaintiffs to file necessary application at an appropriate stage which would be considered by the Trial Court afresh in accordance with law. Accordingly, the following order:

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Writ petition is allowed. The impugned order dated 28.01.2022 passed on IA-5 in O.S.No.16/2021 by the Court of Prl. Civil Judge & JMFC, Chikkaballapura, is set aside. Consequently, IA-5 is dismissed with liberty to the plaintiffs to file a fresh application seeking the very same relief at an appropriate stage before the Trial Court. All contentions urged by both the parties are kept open.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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KK

Smt Narasamma v. Sri M v Satishkumar

Case brief

What is this about?

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Smt Narasamma v. Sri M v Satishkumar

Case brief

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