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2021 Supreme(Online)(KAR) 11
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL, 2021 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.39796 OF 2016 (GM-CPC)
BETWEEN:
SRI. R. MUNEGOWDA, S/O LATE B P RAMAIAH, AGED ABOUT 43 YEARS, R/AT ASHWATHANAGAR, THANISANDRA VILLAGE, KRISHNARAJAPURAM HOBLI, BANGALORE – 560 086.
…PETITIONER (BY SRI. MANJUNATH M HEGDE, ADVOCATE FOR SRI. T SESHAGIRI RAO, ADVOCATE)
AND:
1. SRI. MOHAMMED ABDULLA, S/O MOHAMMED SHAHID, AGED ABOUT 48 YEARS, R/AT NO 23/11, BENSON CROSS ROAD, BINNY CRESCENT ROAD, BENSON TOWN, BANGALORE- 560 046.
2. SMT. NOOR- E-SEHAR, W/O MOHAMMED ABBAS, AGED ABOUT 47 YEARS, R/AT NO 23/11, BENSON CROSS ROAD, BINNY CRESCENT ROAD, BENSON TOWN, BANGALORE – 560 046.
…RESPONDENTS (BY SRI. S A H RAZVI, ADVOCATE FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 8.7.2016 ONE PASSED BY THE VII ADDL CITY CIVIL JUDGE (CCH-19) AT BANGALORE ON I.A.NO.16 IN O.S.NO.4257/2003 FOUND AT ANNEXURE-E TO THE WRIT PETITION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING B GROUP, THIS DAY THROUGH PHYSICAL HEARING, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner being the plaintiff in an injunctive suit in O.S.No.4257/2003 is invoking the writ jurisdiction of this court for assailing the order dated 8.7.2016, a copy whereof is at Annexure-E, whereby the learned VII Addl. City Civil Judge, Bangalore, having favoured respondents application in I.A.No.26 filed u/o XXVI Rule 9 of CPC, 1908, has appointed a court commissioner to survey the suit schedule property, identify its existence and further to submit the report in this regard along with the survey sketch.
2. After service of notice, the respondents having entered appearance through their counsel resist the writ petition making submission in justification of the impugned order and the reasons on which it has been structured.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter inasmuch as the order of the kind is a product of exercise of discretion and the deeper examination of such orders are not undertaken by the writ court exercising limited supervisory jurisdiction constitutionally vested in it u/a 227 vide Sadhana Lodh Vs. National Insurance Company Limited, (2003) 3 SCC 524, in the absence of exercise thereof having been shown to be contrary to rules of reason & justice.
4. The other reason for not granting indulgence in the matter is that after all, commissioner’s report will be submitted to the court and if it goes against the interest of the petitioner, he can register his objections thereto which shall be considered by the learned trial Judge objectively before making it a piece of evidence, keeping in view the rest on record; thus, there are sufficient checks & balances which will yield justice to the petitioner therein;
5. Lastly, it has been the consistent view of the courts in the country that report of the court commissioner is not the gospel truth and therefore, its evidentiary value would be decided by the learned trial Judge after hearing both the sides and also keeping in view the rest of the evidence on record.
6. Learned counsel for the petitioner is more than justified in insisting for a local engineer of the BBMP assisted by a surveyor, to be appointed as court commissioner for accomplishing the job post-haste; court below may take a decision in this regard.
In view of the above, writ petition is disposed off.
Costs made easy.
