Sri. Krishna Moolya Vs Mr. David Ebnesor Imon

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI AND QUASH THE ORDER DTD.13.11.2019 PASSED IN I.A.NO.13 IN O.S.NO.272/2013 PENDING ON THE FILE OF V ADDL. CIVIL JUDGE AND JMFC MANGALURU (PRODUCED VIDE ANNEXUREA) TOT HE W.P. AND ALLOW THE APPLICATION AS PRAYED FOR. ISSUE A WRIT OF CERTIORARI AND QUASH THE ORDER DTD.25.11.2019 PASSED IN IA NO.15 AND 16 IN O.S.NO.272/2013 PENDING ON THE FILE OF V ADDL. CIVIL JUDGE AND JMFC MANGALURU (PRODUCED VIDE ANENXURE-B) TO THE W.P. AND ALLOW THE APPLICATION AS PRAYED FOR & ETC.

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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 MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed seeking following reliefs:

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"i) Issue a Writ of Certiorari and quash the order dated 13/11/2019 passed in I.A.No.13 in O.S.No.272/2013 pending on the file of V Addl. Civil Judge and JMFC, Mangaluru (produced vide Annexure 'A'), to the writ petition and allow the application as prayed for and

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ii) Issue a Writ of Certiorari and quash the order dated 25/11/2019 passed in I.A.No.15 and 16 in O.S.No.272/2013 pending on the file of V

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NC: 2025:KHC:24972 W.P. No.51946/2019

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Addl. Civil Judge and JMFC, Mangaluru (produced vide Annexure 'B'), to the writ petition and allow the application as prayed for."

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Sri.K.Ravishankar, learned counsel appearing

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for the petitioners submits that the petitioners filed a suit for specific performance of the agreement of sale dated 30.11.1990 against the respondents herein. It is submitted that the said agreement of sale was entered between the father of the petitioners and the father of the respondents. Due to the legal hurdle, the said agreement was kept pending and could not be enforced immediately. After denial of the said agreement by the respondents, the petitioners filed a suit for enforcement of the same. It is further submitted that under the agreement of sale, the father of the defendants has handed over the possession of the suit schedule property to the father of the petitioners and thereafter, the father of the petitioners has made improvements. It is also contended that the respondents filed a written statement denying the receipt of advance sale consideration and the execution of the

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agreement of sale. They have also denied that the possession is handed over to the father of the petitioners and there are improvements on the suit schedule property. The parties have adduced the evidence. At that stage, the petitioners filed an application seeking for appointment of Court Commissioner for local inspection to find out the points referred in the application, which would aid the trial Court in deciding the dispute between the parties. It is submitted that DW.1 in his cross-examination has expressed no objection for appointment of Court Commissioner. Without considering any of the aspects, the trial Court rejected the application recording the finding that seeking to appoint a Court Commissioner is nothing but to collect evidence and if any discrepancy with regard to the extent, boundary etc., can be looked into the execution proceedings. It is also submitted that the finding recorded by the trial Court runs contrary to the law laid down by this Court in the case of Shadaksharappa v.

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Smt.Vijayalaxmi and Others¹ . Hence, he seeks to allow

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the said application. It is further submitted that the petitioners also filed an application under Order XVIII Rule 17 r/w Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') to recall DW.1 for further crossexamination on the ground that on a particular given day he could not put all the questions to the said witness and one more opportunity may be granted to cross-examine DW.1. However, the trial Court under the impugned order rejected the said application without assigning any reasons. Hence, he seeks to allow the writ petition by allowing the application for appointment of Court Commissioner to local inspection and also permission to further cross-examine DW.1.

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Though the notice of this proceedings are issued and served to the other side, they remained absent.

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1 ILR 2023 KAR 3983

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NC: 2025:KHC:24972 W.P. No.51946/2019

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HC-KAR

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I have heard the arguments of the learned

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counsel for the petitioners and meticulously perused the material available on record. I have given my anxious consideration to the submission advanced and the case law cited.

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The pleading and material on record indicate that the petitioners who are plaintiffs in OS.No.272/2013 filed a suit for relief of specific performance of the agreement of sale dated 30.11.1990. The plaint averments at paragraph No.III(b) indicate that the father of the respondents executed the agreement of sale in favour of the father of the petitioners after receipt of the advance sale consideration. It is averred that the possession of the suit schedule property was also handed over to the father of the petitioners and thereafter, they have made improvements and planted coconut trees. It is also averred that the property is in triangular shape, a water channel passes through it and a tank also exists. The said assertion of the petitioners in the plaint with regard to the

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NC: 2025:KHC:24972 W.P. No.51946/2019

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execution of the agreement of sale, handing over possession and nature of property and its improvement has been emphatically denied by the respondents in paragraph No.5 of the written statement. The trial Court framed the issues. The plaintiff examined the witness. DW.1, who has entered the witness box, has clearly deposed that he has no objection to appoint a Court Commissioner. Considering the same, the petitioners filed an application under Order XXVI Rules 9 and 10 seeking to appoint an Advocate Court Commissioner and the competent surveyor of the Tahasildar Office, Mangaluru, Dakshina Kannada to ascertain certain factual aspects referred to in the application from point Nos.1 to 10. The trial Court rejected the same on the ground that such request of the petitioners amounts to collection of evidence and if any boundary discrepancy occurs, the same can be gone into in the execution proceedings.

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In my considered view, the trial Court has committed a grave error, specially when the other side in

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the proceedings has specifically denied the possession, improvements, the topography of the property, the existence of the water channel and the tank. In my considered view, these factual assertions though found in the evidence of the plaintiffs and the pleading, may not be sufficient to prove their case and for the complete adjudication of the dispute between the parties. Hence, for such assertion of actual matrix, it would be just and necessary to appoint an independent body, a Court Commissioner who can give factual input to the Court so that the Court can record its finding on the issues with regard to the possession, improvements, etc., which has been contended by the petitioners in the plaint. This Court in the case of Shadaksharappa referred supra at paragraph Nos.9 to 14 has categorically held that one of the objects of appointment of Court Commissioner is to find out the factual aspects and the said report is the evidence. In other words, the finding of the trial Court that the filing of the application for appointment of Court

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Commissioner is to collect evidence would run contrary to

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the finding reported by this Court in the aforesaid judgment. This Court has laid down the detailed guidelines as to how the application for appointment of Court Commissioner is required to be considered. In my considered view, this is a case where the application for local inspection needs to be allowed. Insofar as the application filed by the petitioner under Order XVIII Rule 17 to recall DW.1, in my considered view, the suit is at the stage of trial and no injustice would be caused to the other side if the petitioners are provided one more opportunity to further cross-examine DW.1. For the aforementioned

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reasons, I proceed to pass the following:

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ORDER

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i) The writ petition is allowed. ii) The impugned order dated

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13.11.2019 passed on IA.No.13 and order dated 25.11.2019 passed on IA.Nos.15 and 16 in OS.No.272/2013 by the V Additional Civil Judge

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NC: 2025:KHC:24972 W.P. No.51946/2019

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and JMFC are hereby set aside. Consequently,

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IA.Nos.13, 15 and 16 are allowed.

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iii) The trial Court is directed to appoint

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the Advocate Court Commissioner and the competent surveyor of the Tahasildar Office, Mangaluru, Dakshina Kannada to find out the factual assertion made in the said application and report the same to the Court.

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iv) The petitioners are permitted to

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further cross examine DW.1 as sought in the application.

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v) No order as to costs.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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ABK

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List No.: 1 Sl No.: 30

Sri. Krishna Moolya v. Mr. David Ebnesor Imon

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Sri. Krishna Moolya v. Mr. David Ebnesor Imon

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