V S Raghavendra Vs C B Manjunath

THIS WP IS FILED UNDER ARTICLES 226 AND 27 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 28.05.2019 ON I.A.NO.VII IN O.S.NO.96/2016 PASSED BY THE PRL. SR. CIVIL JUDGE AT CHICKMAGALUR VIDE ANNEXURE-G AND ETC.,

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NC: 2025:KHC:5322 WP No. 24348 of 2019

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

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL ORDER

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Aggrieved by the orders dated 28.5.2019 passed on I.A.No.VII in O.S.NO.96/2016 by the Prl. Sr. Civil Judge & CJM, Chikkamagaluru, the plaintiff is before this Court.

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The plaintiff herein has filed the suit for injunction. In that, he filed an application under Order XXVI Rule 9 read with Section 151 of CPC seeking for appointment of the C.D.A. Engineer, Chikkamagalur as Court Commissioner to measure and demarcate the properties in dispute between the plaintiff and the defendant. The petitioner herein had filed the suit for declaration, recovery of possession and mandatory injunction. Before this suit, he has filed another suit against one Kumar stating that he is interfering with the plaintiff's peaceful possession and enjoyment of the property. In that case, a Commissioner was appointed and report was placed before the Court stating that it is not Kumar who has made the

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NC: 2025:KHC:5322 WP No. 24348 of 2019

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constructions but it is the defendant in the present suit who has made the constructions and living in that. Then the present suit came to be filed. When the matter was listed for arguments,

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the present application came to be filed. It is the case of the plaintiff that a Commissioner needs to be appointed, as in the earlier suit, the defendant is not a party and no notice is served on him while conducting the survey. The defendant had filed his objections. It is the specific case of the defendant that already

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the report of the Engineer Commissioner is on record. The Commissioner attached to the CUDA had visited the site and has submitted his report and he has been examined in this suit. It is the case of the defendant that when once the commissioner’s report is on record and when once the Commissioner is examined, an application for appointment of C.D.A. Engineer, Chikkamagaluru as Court Commissioner is not necessary and only to protract the proceedings, the present application is filed. The trial Court by order impugned, had dismissed the said application. The Court while dismissing the application observed that the earlier Court Commissioner was examined by the plaintiff as PW.2. He is cross-examined by the counsel for the defendant. Sufficient materials are produced by

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NC: 2025:KHC:5322 WP No. 24348 of 2019

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both the parties for disposal of the case. Hence, again one more Commissioner cannot be appointed to measure the property as no purpose would be served and accordingly, dismissed the application.

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Learned counsel appearing for the petitioner/ plaintiff submits that during the course of cross-examination, it is elicited that the defendant was not put on notice. While conducting earlier survey on this ground, arguments are advanced stating that the Advocate Commissioner's arguments is not binding on them as before conducting the survey, no notice was given to the defendant and at that stage, if the report is not considered, it would cause lot of prejudice to the case of the plaintiff. As such, he has filed this application, he submits that the application is not filed at a belated stage. Once the evidence is completed and the matter is posted for arguments, at that point of time, this application is filed. The Court without considering all these aspects had dismissed the application.

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Learned counsel appearing for the respondent/ defendant has reiterated the grounds that are taken in the

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NC: 2025:KHC:5322 WP No. 24348 of 2019

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objection petition and he submits that the Court had rightly dismissed the application filed by the plaintiff for appointment of the C.D.A. Commissioner and he submits that no grounds are made out seeking interference with the well considered order passed by the trial Court.

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Having heard the learned counsel on either side, perused the material on record. In respect of the very same suit schedule property, an Advocate Commissioner was appointed in the earlier suit as the defendant in the said suit was not the one who made the construction but the respondent herein. As such, the plaintiff has come up with the present suit and in that, he has marked the Commissioner report and he has examined the Commissioner and on that, the defendant has not raised any objections stating that the said Commissioner's report cannot be considered as they were not parties to the earlier suit. Even in the objections that are filed also, it is their consistent case that already the Advocate Commissioner is appointed and the Commissioner's report is marked as an exhibit and for what purpose again another Commissioner needs to be appointed. According to them, there is no purpose for appointment of another Commissioner. In

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NC: 2025:KHC:5322 WP No. 24348 of 2019

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these facts and circumstance, the reasons stated on the assumption of the plaintiff, is without any basis and in the considered opinion of this Court, the trial Court had rightly dealt with and dismissed the application. This Court finds no reasons to interfere with the well considered order passed by the trial Court. Accordingly, this Court is passing the following:

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ORDER

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(i) The Writ Petition is dismissed .

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(ii) Any observations that are made by this Court while disposing of this Writ Petition, the Court below shall not construe it as an expression of this Court on the merits of the matter and the Court below shall independently decide the case uninfluenced by any of the observations made for deciding this application.

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(iii) All IAs., in this Writ Petition shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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KA

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List No.: 1 Sl No.: 28 CT: BHK

V S Raghavendra v. C B Manjunath

Case brief

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V S Raghavendra v. C B Manjunath

Case brief

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