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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 12^TH DAY OF SEPTEMBER, 2022

BEFORE

THE HON9BLE MR. JUSTICE R. NATARAJ

WRIT PETITION NO.49513 OF 2016 (GM-CPC)

BETWEEN:

1 .

SRI. DEVENDRA GOWDA

S/O. EGAIN GOWDA,

AGED ABOUT 56 YEARS,

2 .

SRI. SANTHRUSH

S/O. DEVENDRA GOWDA,

AGED ABOUT 24 YEARS,

BOTH ARE R/AT

KOLAVALLI KOKKODU VILLAGE,

UNTOORKATTE, KAIMARA POST,

THIRTHALLI TALUK,

SHIVAMOGGA-577432.

&PETITIONERS

(BY SRI. CHANDRASHEKAR, ADVOCATE)

AND:

1 . SRI. DEVENDRA NAIKA

S/O. PUTTA NAIKA,

AGED ABOUT 48 YEARS,

R/AT KOLAVALL KOKKODU VILLAGE,

THIRTHAHALLI TALUK,

SHIVAMOGGA DIST: 577432.

2 . THE PANCHAYATH DEVELOPMENT OFFICER

HOSAHALLI VILLAGE,

PANCHAYATH,

2

THIRTHALLI TALUK,

HOSAHALLI-577432.

&RESPONDENTS

(BY SRI. PRADEEP B.V., ADVOCATE FOR RESPONDENT NO.1;

VIDE ORDER DATED 28.09.2016 SERVICE OF NOTICE TO

RESPONDENT NO.2 IS DISPENSED WITH)

THIS PETITION IS FILED UNDER ARTICLE 227 OF THE

CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED

ORDER DATED 26.08.2016 MADE IN I.A.NO.8 PASSED BY THE

PRL. CIVIL JUDGE AND JMFC AT THIRTHAHALLI, IN O.S.

NO.5/2016 VIDE ANNEXURE-H AND TO REJECT I.A. NO.8 FILED

BY THE PLAINTIFF/1^ST RESPONDENT HEREIN.

THIS PETITION COMING ON FOR HEARING THIS DAY,

THE COURT MADE THE FOLLOWING:

ORDER

The defendant Nos.1 and 2 in O.S.No.5/2016 on the

file of the Principal Civil Judge and JMFC, Thirthahalli, have

filed this writ petition aggrieved by the order dated

26.08.2016 passed therein, by which, an application filed

by the plaintiff under Order XXXIX Rule 7 read with Section

151 of the Code of Civil Procedure, 1908 (henceforth

referred to as 'CPC' for short), was allowed.

2.

The parties shall henceforth be referred to as

they were arrayed before the Trial Court.

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3.

The short facts are that the plaintiff sought for

perpetual injunction against the defendants, who intended

to establish a poultry farm in their property. The plaintiff

contended that the poultry farm was established in a

residential area, where there were several dwelling

houses, schools, Anganawadi, a drinking water Well

belonging to the Government, Panchayat Office etc., He

stated that the Village Panchayat had refused to grant

licence/permission to the defendants to establish a poultry

farm. Since the defendants pursued their intention to

establish poultry farm, the plaintiff filed the present suit

for perpetual injunction.

4.

The Trial Court granted ex-parte order of

interim injunction on an application filed by the plaintiff.

Later, the defendants entered appearance and claimed

that the poultry farm intended to be established by them

was 600 to 800 meters away from the residential locality.

They also alleged that there are no schools or Well

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belonging to the Government or Office of the Panchayat

etc., within 600 to 800 meters from the poultry farm.

5.

The ex-parte order of injunction was extended

from time to time. An application was filed by the plaintiff

under Order XXXIX Rule 7 of CPC for appointment of a

Commissioner to verify whether there are any dwelling

houses within 500 meters from the poultry farm. This

application was favorably considered by the Trial Court and

an Advocate was appointed as a Court Commissioner to

make a local inspection, as prayed for in the application.

6.

Being aggrieved by the said order, the present

writ petition is filed.

7.

The

learned

counsel

for

the

petitioners/defendant Nos.1 and 2 submitted that the

impugned order amounted to collection of evidence, which

is impermissible in a suit for injunction. He submitted that

the plaintiff should adduce evidence and only if the Court

considers it appropriate to appoint a Commissioner,

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provisions of Order XXVI Rule 9 of CPC should be invoked

and the plaintiff is not justified in invoking the provision

under Order XXXIX Rule 7 of CPC. He also submitted that

the purpose of appointing a Commissioner under Order

XXXIX Rule