Mr Valerian a Menezes Vs Mr Jannarias Menezes

THIS WP IS FILED PRAYING TO QUASH THE IMPUGNED ORDER DATED 07.03.2020 PASSED ON IA NO.7 BY THE II ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU, D.K. IN O.S. NO.1011/2016 AS PER ANNEXURE-E AND CONSEQUENTLY DISMISS IA NO.7 FILED BY THE R-1/PLAINTIFF.

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

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed seeking following relief:

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a) Issue a writ of certiorari quashing the impugned order dated 07.03.2020 passed on IA No.7 by the II Additional Civil Judge and JMFC, Mangaluru, D.K., in O.S. No.1011/2016 as per Annexure-E and consequently dismiss IA No.7 filed by the 1^st Respondent/Plaintiff.

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b) grant cost of the proceedings such other relief, in the interest of justice and equity.

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Heard Sri. Vijaya Krinshna Bhat, learned counsel appearing for the petitioner submits that respondent No.1 has filed a suit initially for the relief of

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HC-KAR

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permanent injunction restraining defendant No.2 from the providing Electricity connection to the pump set of defendant No.1. Later he got amended the suit and sought relief of mandatory injunction directing the defendant No.2 to disconnect the electricity connection provided to the pump set of defendant No.1. It is submitted that suit is mainly for relief of mandatory injunction with regard to the electricity connection given to the defendant No.1's pump set. In a plaint averment the assertion is made that, on a forged document electricity connection is obtained. Hence, the relief for mandatory injunction is sought to disconnect such electricity connection and in the said suit respondent No.1 filed an application for appointment of any member of Bar as a Court/Advocate Commissioner, which came to be allowed by the Trial Court under the impugned order without understanding the scheme of the suit and the relief sought in the said suit.

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It is submitted that the relief is for mandatory

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injunction to disconnection of electricity, which can be

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HC-KAR

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adjudicated based on the oral and documentary evidence and there is no factual dispute with regard to the prayer sought and no factual assertion made by the parties are required to be gone into in the said suit. However, the Trial Court by recording incorrect finding allowed the application for appointment of Court Commissioner. Hence, he seeks for allowing the writ petition.

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Per contra, learned counsel appearing for respondent No.1/plaintiff supports the Impugned order of the Trial Court and submits that respondent No.1-plaintiff has clearly stated that well is situated in between schedule A and B properties and the defendant has no exclusive

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right to draw the water from the same well and by false representation he obtained electricity connection.

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It is submitted that the Trial Court after considering the plaint averments and evidence on record, has exercised its discretion by recording the finding that the location of well is required to be ascertained to resolve the dispute between the parties. Such discretionary order

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HC-KAR

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cannot be interfered likely by the Writ Court. In support of his contention he placed reliance on the decision of this Court in the case of N.SWAMYGOWDA V/s. RAMEGOWDA AND OTHERS¹ and the decision of the Kerala High Court in the case of GEORGE V/s. CLETUS² and contended that the dispute when it is related to well, it is an obligation on the part of the Trial Court to ascertain the same in order to consider the relief sought in the plaint. Hence, he seeks to dismiss the petition.

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I have heard the arguments advanced by the learned counsel for the petitioner and learned counsel for respondent and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced by both sides.

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Respondent No.1 filed O.S.No.1011/2016 for

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the following reliefs:

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1 ILR 2010 KAR 897

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2 OP(C) 1061 of 2018 dated 10.04.2018

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HC-KAR

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A) Restraining the defendant NO.2 form providing electricity connection to the pump set of defendant No.1.

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Ai) For a Mandatory Injunction directing the 2^nd defendant to disconnect electricity connection provided to the pump set 1^st defendant.

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The respondent No.1/plaintiff has categorically made a statement in the plaint that in the middle of the survey line there exists a open well and the defendant did not have exclusive right over the well. By suppressing all these facts, with a malafide intention defendant No.1 created a false documents with assistance of the Revenue authorities and submitted the same to the defendant No.2 and obtained the connection which he seeks to disconnect. Petitioner in his written statement denied various assertions made in the plaint and specifically contended that as per the survey sketch prepared by the Village Accountant after inspection, the well is located in B schedule property. In other words, the petitioner,

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HC-KAR

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defendant No.1 is asserting that he has exclusive right over the well and the well is situated within his property. There is no dispute that the relief sought in the plaint is for only mandatory injunction to disconnect the electricity connection. The contention of the plaintiff is that the defendant No.1 has misrepresented the Revenue Authorities and obtained the connection. Though the facts with regard to the well is situated in the A schedule property or B schedule property, is not the specific subject of the matter of the suit. However, it is necessary to find out, to grant the relief sought in the plaint, as one party claims exclusive right and another party claims that the well located at properties of both the parties and based on that, mandatory relief was sought. The Trial Court considering the said assertion by well reasoned order at paragraph No.12, has rejected the contention raised by the petitioner herein with regard to the contention that the relief is for mandatory injunction. The location of the well plays a vital role in granting the relief sought in the plant.

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HC-KAR

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The said finding of the Trial Court is based on the pleadings and evidence on record. The Trial Court also recorded the finding that the Court Commissioner appointment is necessary to resolve the ambiguity in the oral and documentary evidence. Ultimately the Court Commissioner report would aid the Trial Court in adjudicating the dispute between the parties.

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In the instant case, I am of the considered view that no prejudice would be caused to the other side. This Court in the case of SHADAKSHARAPPA S/O VEERANNA V/S. KUMARI VIJAYALAKSHMI and OTHERS³ held that denial of an opportunity to appoint Court Commissioner in the given case is amounting to denial of providing of an opportunity to lead evidence. In the instant case, application is rightly allowed after conclusion of the trial. This court in the case of N.Swamygowda , referred supra, has held in paragraph Nos.10, and 11 as under:

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3 ILR 2023 KAR 3983

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9 -

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HC-KAR

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"10. When there are conflicting versions regarding the location of the suit schedule property, no amount of oral and documentary evidence may enable the Trial Court to adjudicate the matter. It has therefore, appointed the Court Commissioner for ascertaining whether the suit schedule property is situated in the lands at Sy.Nos. 175, 291 or 297. The appointment of the Court Commissioner falls within the discretionary province of the Trial Court. In exercise of the power, under Article 227 of the Constitution of India, it is not desirable to direct the Trial Court either to appoint or not to appoint the Court Commissioner. The power under Article 227 of the Constitution is exercisable only for ensuring that the subordinate Courts function within the limits of their authority, as held by the Apex Court in the cases of BATHUTMAL RAICHND OSWAL vs.

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LAXMIBAI R. TARTA and of SHAMSHAD AHMAD vs. TILAK RAJ BAJAJ.

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11. When the Trial Court, on perusing the oral and documentary evidence placed on its record, has formed the view that the matter calls for the appointment of the Court Commissioner, it cannot be found to be at fault. Needless to observe that the petitioner has the liberty of assailing the Court Commissioner's report in accordance with law. The

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HC-KAR

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order appointing the Court Commissioner does not put the petitioner to any prejudice."

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Considering the aforesaid decisions, I am of the considered view that Trial Court after applying its mind exercised judicious discretion and taking note of the peculiar facts and circumstances of the case had allowed the application. The order impugned is neither perverse nor contrary to law calling for interference in this writ petition. For the aforementioned reasons, I proceed to pass the following:

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ORDER

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i) Writ Petition is devoid of merits and accordingly,

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same is rejected .

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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LDC List No.: 1 Sl No.: 38

Mr Valerian a Menezes v. Mr Jannarias Menezes

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Mr Valerian a Menezes v. Mr Jannarias Menezes

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