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2023 Supreme(Online)(KAR) 20959
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WP No. 103301 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 103301 OF 2021 (GM-CPC)
BETWEEN:
MAKABUL S/O RAJESAHEB SYED,
AGE. 68 YEARS,
OCC. ARICULTURE AND ADVOCATE,
R/O. KHATIK GALLI,
JAMAKHANDI-587301.
DIST. BAGALKOT.
…PETITIONER
(BY SRI. PRASHANT S.KADADEVAR, ADVOCATE)
AND:
1.
SMT.ANASUYA W/O NANASAHEB VICHARE,
AGE. 74 YEARS,
OCCN. HOUSEHOLD WORK,
R/O. KHURD BALEKUNDRI-591103,
TQ. BELAGAVI,
DIST. BELAGAVI.
2.
SHAILENDRA S/O NANASAHEB VICHARE,
AGE. 33 YEARS,
OCCN. SERVICE,
R/O. KHURD BALEKUNDRI-591103,
TQ. BELAGAVI,
DIST. BELAGVI.
3.
SRI. MAHESH S/O NANASAHEB VICHARE,
AGE. 29 YEARS,
OCCN. SERVICE,
R/O. KHURD BALEKUNDRI-591103,
TQ. BELAGAVI,
DIST. BELAGAVI.
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WP No. 103301 of 2021
4.
SRI. MAHIBOOB S/O LADSAB KHATIK,
AGE. 37 YEARS,
OCCN. BUSINESS,
R/O. KHATIK GALLI,
JAMAKHANDI-587301,
DIST. BAGALKOT.
…RESPONDENTS
(BY SRI. GIRISH A.YADAWAD, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE
IMPUGNED ORDER ON IA NO.14 DATED 27.07.2021 PASSED
BY THE PRL. CIVIL JUDGE AND JMFC, JAMKHANDI I/C ADDL.
CIVIL JUDGE AND JMFC JAMKHANDI AT JAMAKHANDI IN
O.S.NO.90/2017 (ANNEXURE-F).
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
A party can file a fresh application under Order XXVI Rule 9 C.P.C. after completion of evidence, and the trial court should consider and pass appropriate orders on the said application without being influenced by the findings and observations recorded in an earlier order.
Headnote:
Fact of the Case:
The petitioner filed a suit for permanent injunction against the respondents and moved an application under Order XXVI Rule 9 C.P.C. seeking appointment of Court Commissioner in relation to the suit schedule property. The trial Court rejected the application.
Finding of the Court:
The court observed that the petitioner intended to file a fresh application under Order XXVI Rule 9 C.P.C. after completion of evidence and directed the trial Court to dispose of the said application without being influenced by the findings or observations recorded in the impugned order.
Issues: Whether the petitioner could file a fresh application under Order XXVI Rule 9 C.P.C. after completion of evidence.
Ratio Decidendi: The court held that the petitioner could file a fresh application under Order XXVI Rule 9 C.P.C. after completion of evidence and the trial Court should consider and pass appropriate orders on the said application without being influenced by the findings and observations recorded in the impugned order.
Final Decision: The petition was disposed off subject to the aforesaid directions and liberty reserved in favor of the petitioner.
This petition is directed against the impugned order dated
27.07.2021 passed on I.A.No.14 in O.S.No.90/2017 by the
Principal Civil Judge and J.M.F.C. at Jamkhandi whereby the
application-I.A.No.14 filed by the petitioner-plaintiff under
Order XXVI Rule 9 C.P.C. was rejected by the trial Court.
Heard learned counsel for the petitioner and learned
counsel for respondents and perused the material on record.
The material on record discloses that in the
aforesaid suit for permanent injunction filed by the petitioner-
plaintiff against the respondents-defendants, the petitioner-
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plaintiff moved the instant application-I.A.No.14 under Order
XXVI Rule 9 C.P.C. seeking appointment of Court Commissioner
in relation to the suit schedule property. The said application
having been opposed by the defendants-respondents, the trial
Court proceeded to pass the impugned order rejecting
I.A.No.14, aggrieved by which, the petitioner-plaintiff is before
this Court by way of present petition.
Learned counsel for the petitioner submits that the
petitioner intends to file fresh/new application under Order
XXVI Rule 9 C.P.C. after completion of evidence and the trial
Court may be directed to dispose of the said application to be
filed by the petitioner after completion of evidence without
being influenced by the findings or observations recorded in the
impugned order.
5.
Submission of learned counsel is placed on record.
6.
In view of the aforesaid facts and circumstances
and submission made by the learned counsel for the petitioner,
I deem it just and appropriate to dispose off this petition
reserving liberty in favour of the petitioner to file fresh/new
application under Order XXVI Rule 9 C.P.C. after completion of
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evidence. If such an application is filed by the petitioner, the
trial Court shall grant an opportunity of filing objections to the
respondents-defendants
and
shall
consider
and
pass
appropriate orders on the said application without being
influenced by the findings and observations recorded in the
impugned order on I.A.No.14 dated 27.07.2021.
7.
Subject to the aforesaid directions and liberty
reserved in favour of the petitioner, petition stands disposed
off.
SD
JUDGE
CLK
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