IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 14^TH DAY OF JANUARY, 2022

BEFORE

THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

WRIT PETITION NO.111688/2019 (GM-CPC)

BETWEEN

SRI.ZAKHIR HUSSAIN

S/O WRONGLY SHOWN AS HAYATH VALI,

BUT THE SAME IS ABDUL LATHEEF,

AGED ABOUT: 69 YEARS,

OCC: GOVERNMENT EMPLOYEE,

R/O PLOT NO.2, WARD NO.25,

NANDI COLONY, 2^ND CROSS,

CANTONMENT, BALLARI.

...PETITIONER

(BY SRI T.M. NADAF, ADV.)

AND

SRI.T.BHAVANI PRASAD S/O T THIMMAPPA,

AGED ABOUT: 78 YEARS, OCC: BUSINESSMAN,

R/O: PLOT NO.16, SY NO.26,

BASAVESHWARNAGAR, BALLARI.

…RESPONDENT

(BY SRI VINAY S. KOUJALAGI, ADV. FOR

SRI V.M. SHEELVANT, ADV.)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE

RECORDS FROM THE OFFICE OF II ADDITIONAL CIVIL JUDGE AT

BALLARI IN O.S.NO.1019/2010 AND TO QUASH THE ORDER

DATED 04.06.2019 ALLOWING THE I.A.NO.9 FILED BY THE

RESPONDENT PASSED BY THE II ADDITIONAL CIVIL JUDGE &

J.M.F.C BALLARI IN O.S. NO.1019/2010, VIDE ANNEXURE-E.

---

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: 2 :

THIS PETITION COMING ON FOR PRELIMINARY HEARING IN

‘B’ GROUP, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING

HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The respondent, as a plaintiff, has instituted a suit

against the present petitioner arraigning him as the

defendant in O.S. No.1019/2010 in the Court of II

Additional Civil Judge and JMFC, Ballari (hereinafter for

brevity referred to as ‘trial Court’), for the relief of

declaration to declare that he has right to enjoy light

and air through the southern side of the plaint schedule

property and for a direction to the defendant by way of

mandatory injunction to leave the necessary setback on

his southern side wall as per the law.

2.

During the pendency of the said suit, the

plaintiff filed I.A. No.9 under Order XXVI Rule 9 read

with Section 151 of the Code of Civil Procedure, 1908

(hereinafter for brevity referred to as ‘CPC’) seeking for

appointment

of

a

Court

Commissioner

for

local

W.P.No.111688/2019

: 3 :

inspection. The defendant filed his objection to the said

application. After hearing both side, the trial Court by

its order dated 04.06.2019 allowed the said application

and appointed a Court Commissioner. Challenging the

said order, the defendant in the trial Court has preferred

this writ petition.

3.

Learned counsel for the petitioner in his

argument submitted that the prayer made in the

application is vague and that the plaintiff has prayed for

a local inspection of the entire property of the plaintiff as

well as his property, when, in fact, his compliant is only

with respect to the northern side of the defendant’s

property. He also submitted that the plaintiff as PW-1 in

his evidence on the said I.A. has stated that at the

relevant side, the defendant has left setback as such

also there was no necessity for appointing a Court

Commissioner.

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4.

Learned counsel for the respondent in his

single sentence argument submitted that even though

the impugned order says that the Court Commissioner

to ascertain the setback of the defendant’s property but

the plaintiff is concerned only with respect to the

setback left by the defendant on the northern side of his

property abutting to the southern side of the plaintiff’s

property.

5.

The suit of the plaintiff is for a declaration

regarding his entitlement for free flow of air and light to

his property for which, according to the plaintiff, the

defendant has caused obstruction by not leaving setback

on the northern side of the defendant’s property which is

adjacent to the southern side of the plaintiff’s property.

In that regard, the plaintiff had filed I.A.No.9 under

Order XXVI Rule 9 of CPC for appointment of a Court

Commissioner for local inspection of the properties of

the plaintiff and the defendant. No doubt in the said

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applic