IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 05^TH DAY OF APRIL, 2022

BEFORE

THE HON9BLE MR. JUSTICE E.S.INDIRESH

W.P. NO. 2035 OF 2022(GM-CPC)

BETWEEN

1 . SRI AMARCHAND

S/O PUKRAJ

AGED ABOUT 73 YEARS

2 . SMT. KAMALA DEVI

W/O SRI AMARCHAND

AGED ABOUT 68 YEARS

BOTH ARE R/AT NO.404/94

9^TH MAIN ROAD, VIJAYANAGAR

BENGALURU - 560 040

...PETITIONERS

(BY SRI P D SURANA, ADVOCATE)

AND

SRI M NARAYANAPPA

S/O LATE MUNIYAPPA

AGED ABOUT 59 YEARS

R/AT NO.192, JNANABHARATHI ROAD,

NAGARABAVI VILLAGE

NAGARABHAVI

BENGALURU - 560 072

&.RESPONDENT

2

(BY SRI K V NARASIMHAN, ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF

THE CONSTITUTION OF INDIA PRAYING TO QUASH THE

ORDER DATED 03.01.2022 MADE ON ORDER ON REPORT OF

COMMISSIONER

PRODUCED

AT

ANNEXURE-J

IN

O.S.NO.3794 OF 2011 ON THE FILE OF COURT OF THE XII

ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BENGALURU

(CH-27).

THIS PETITION COMING ON FOR ORDERS THIS DAY,

THE COURT MADE THE FOLLOWING:

ORDER

This writ petition is filed by the plaintiffs in Original Suit

No.3794 of 2011 on the file of the XI Additional City Civil

Judge, Bengaluru, challenging the order dated 03.01.2022.

2.

Brief facts are that, the plaintiffs have filed suit

seeking relief of permanent injunction, restraining the

defendant from interfering with the suit schedule property.

Defendant entered appearance and filed written statement.

In the meanwhile, the Court Commissioner was appointed by

the court to locate and demarcate the suit schedule property.

The Court Commissioner has filed report to the trial court.

Statement of objection was filed before the trial court in

respect of the survey report submitted by the Technical

3

Assistant to the Deputy Commissioner, who was Court

Commissioner in the suit. The parties had cross-examined

the Court Commissioner with regard to the report and

thereafter, the trial Court by order dated 03.01.2022

accepted the Court Commissioner9s report. The said order

dated 03.01.2022 is impugned in this petition.

3.

I have heard Sri P.D.Surana, learned counsel

appearing for the petitioners and Sri K.V. Narasimhan,

learned counsel appearing for the respondent.

4.

Sri P.D.Surana, learned counsel appearing for the

petitioners invited the attention of the court to the sketch

produced in the writ petition as Annexure-D and argued that

the report of the Court Commissioner is contrary to the

sketch made available in the petition. He also contended

that, the trial Court ought not to have accepted the report of

the Court Commissioner which is based on the surmises and

conjunctures. He drew the attention of the court to the

schedule appended to the suit in Original Suit No.117 of 2005

produced at Annexure- C and contended that Commissioner9s

4

report is contrary to the factual aspect of the case and

therefore,

the

Commissioner9s

report

is

required

to

discarded. To support his arguments, he placed reliance on

the judgment of the Madras High Court in the case of Vemba

Gounder Vs.Poncholai Gounder reported in AIR 1996

Madras 347 and judgment of Orissa High Court in the case

of Gopal Behera and others Vs. Lokanath Sahu and

others reported in AIR 1991 Orissa 6 and law declared by

the Hon'ble Apex Court in the case of Lekh Raj Vs. Muni Lal

and others reported in AIR 2001 SC 996 and submitted

that a fair opportunity should be given to the plaintiffs to

cross-examine the Court Commissioner and without

affording such opportunity to the plaintiffs, the trial Court

straight away passed the impugned order which is contrary

to law. Accordingly, he sought for interference in this Writ

Petition.

5.

Per contra, Sri K.V. Narasimhan, learned counsel

appearing for the respondent sought to justify the impugned

order passed by the trial Court and further argued that the

5

trial Court is yet to pass the orders based on the report made

available by the Court Commissioner, and therefore, he

sou