S M Sharanaiah Vs G S Nagaraja

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER IMPUGNED ORDER PASSED BY THE LEARNED 3^RD ADDL. CIVIL JUDGE AND JMFC CHITRADURGA ON I.A.NO.19 IN O.S.350/2011 DATED 19.02.2020 ON THE APPLICATION FILED BY THE PETITIONER, U/O 26 RULE 9 OF C.P.C AS PER ANNX-F BY ISSUING WRIT OF CERTIORARI.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD

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NC: 2025:KHC:1391 WP No. 2175 of 2021

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ORAL ORDER

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This petition is by the plaintiff in O.S. No.350/2011 on the file of the III Additional Civil Judge and JMFC, Chitradurga [ 'the civil Court' ]. The civil Court, by the impugned order dated 19.02.2020, has rejected the petitioner's application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 [CPC]. The civil Court's reason to reject the application, apart from the fact that the application is filed when the suit is listed for arguments, reads as under:

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"5. The suit of the plaintiff is one for the relief of declaration and permanent injunction. The plaintiff is seeking appointment of court commissioner for the purpose of taking photographs of the suit schedule property with regard to the encroachment made by the defendants. The defendants have denied the contentions raised by the plaintiff. The plaintiff himself can take photographs of the suit schedule property as to the alleged encroachment made by the defendants and produce before the court. The court commissioner cannot be appointed in order to

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ascertain the encroachment made by the defendants as contended by the plaintiff in his affidavit. The same will amount to collection of evidence. As such no grounds made out by the plaintiff to appoint court commissioner."

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Sri S C Vijayakumar, the learned counsel for the petitioner, and Sri Gurudath V R, the learned counsel for the respondents, are heard on perusal of the records.

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The petitioner has filed a suit for declaration that a certain portion of the property measuring East to West - 29 yards and North to South - 31 yards in khata No.136 of Chikkappanahalli Village, Turuvanur Hobli, Chitradurga Taluk is encroached by the respondents for construction of a shed and a lavatory and to direct the respondents to deliver possession of such encroached portion. The respondents have filed their written statement contending, amongst others, that their predecessor-in-interest has purchased the

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NC: 2025:KHC:1391 WP No. 2175 of 2021

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portion that is utilized for a shed and a lavatory way back in the year 1921.

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If the petitioner has filed the subject application for appointment of Commissioner to inspect the property and to report on the nature of the suit schedule property with the alleged encroachments along with the sketch, the respondents have resisted the application contending that in the suit commenced against them by Sri Jagadeesha in O.S. No.354/2011, a Court

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Commissioner is appointed who has filed a Report.

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This Court must opine that the application for appointment of a Commissioner under Order XXVI Rule 9 of CPC is filed after the conclusion of the evidence, and with the Commissioner’s report there will be elucidation of evidence on record. The civil Court could not therefore take exception with the application being filed when the suit is listed for arguments. As regards the other reason assigned viz.,

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the appointment of a Commissioner is to take photographs, this Court must observe that the civil Court has not read the application in its entirety.

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The petitioner has filed this application for the Court Commissioner to visit the subject property and to file a report with the sketch [showing the extents of usage in the subject property] and the photographs and not just to take photographs. A Court Commissioner’s Report as regards the above can only elucidate the evidence on record leading to complete adjudication. The civil Court has overlooked these material facts and circumstances, and hence, this Court must intervene. In the light of the afore, the following:

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ORDER

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[a] The petition is allowed.

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[b] The impugned Order dated 19.02.2020 in O.S. No.350/2011 on the file of the III Additional Civil Judge and JMFC,

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NC: 2025:KHC:1391 WP No. 2175 of 2021

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Chitradurga [Annexure-F] is quashed

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allowing the petitioner's application for appointment of a Commissioner.

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[c] The civil Court, upon receipt of a certified copy of this order, shall appoint the jurisdictional Assistant Executive Engineer as a Court Commissioner to visit

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the subject property and file a Report along with the sketch at the petitioner's cost.

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Sd/(B M SHYAM PRASAD) JUDGE

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AN/-

S M Sharanaiah v. G S Nagaraja

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S M Sharanaiah v. G S Nagaraja

Case brief

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