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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 12^TH DAY OF JANUARY, 2021

BEFORE

THE HON’BLE MR.JUSTICE S.R.KRISHNA KUMAR

WRIT PETITION NO.44228 OF 2014 (GM-CPC)

BETWEEN:

P.Devaraju,

S/o. Late Siddegowda Alias Puttegowda,

Aged about 55 years,

R/o. Madarahalli Village,

C.A.Kere Hobli,

Maddur Taluk, Mandya District-571428.

…Petitioner

(By Sri. Pruthvi Wodeyar, Advocate)

AND:

Shivanna Dead by LRS:

1.

Smt. Lakshmamma,

Aged about 25 years,

W/o. Late Shivanna,

2.

Kum. Amrutha,

Aged about 10 years,

D/o. Late Shivanna,

3.

Arjuna,

Aged about 9 years,

S/o. Late Shivanna,

R2 & R3 are minors and

Represented by R1 and

All are residents of Madarahalli

Village, C.A.Kere Hobli,

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Maddur Taluk,

Mandya District-571428.

4.

Unthuraiah,

S/o. Late Chikkahyadaiah,

Aged about 72 years,

5.

Smt. Kempamma,

W/o. Unthuraiah,

Aged about 59 years,

6.

Smt. Shivamma,

W/o. Sannaiah,

Aged about 49 years,

R/o. Bidadi,

Bengaluru South Taluk,

Bengaluru Rural District-562109.

7.

Smt. Meenakshi,

D/o. Unthuraiah,

Aged about 52 years,

Disabled and

Represented by Father,

Respondent No.4.

8.

Prakasha,

S/o. Unthuraiah,

Aged about 39 years,

R4, R5, R7 & R8 are

Residents of Madarahalli Village,

C.A.Kere Hobli, Maddur Taluk,

Mandya District-571428.

…Respondents

(By Sri. L.Raja, Advocate for R1 to R5 and R8,

R2 & R3 are Minor, R7 - Served)

This Writ Petition is filed under Articles 226 & 227 of

The Constitution of India, praying to call for the records,

quash the order vide annexure-E. passed by the Learned

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Additional Civil Judge (Jr. Dn.) & JMFC, Maddur, in

O.S.No.156/2000 on I.A.No.15 dated 27.03.2014 and etc.

This Writ Petition coming on for this day, the Court

made the following:

ORDER

This petition is directed against the impugned

order dated 27.03.2014 whereby the trial court allowed

I.A.No.15 filed by the plaintiff under Order 26 Rule 9 of

CPC seeking appointment of Commissioner for local

inspection of the suit schedule property and to submit

his report.

2. Heard the learned counsel for the petitioner and

the learned counsel for the respondent and perused the

material on record.

3. Since an interim order passed in this petition,

the Commissioner did not proceed with the commission

work and submit his report. However subsequent to

13.08.2019, since the interim order granted earlier

pending

extension,

the

court

commissioner

has

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proceeded to conduct local inspection and the same has

been noted in the trial court’s order sheet dated

8.12.2020, wherein the trial court passed the following

order:

ORDER

“The

Taluk

Surveyor

Maddur

has

submitted a report stating that, as per the

memo of instructions given by the plaintiff, it

is not possible to collect all the documents by

this surveyor and complied the instructions

except the instruction No.1, 2, 4, 5 and 15.

On

the

last

date

of

hearing

the

defendants

also

filed

their

memo

of

instructions.

On perusal of the memo of instructions

filed by both parties in the light of the report

submitted by the Taluk Surveyor it appears

that, the compliance of instructions given by

the parties would amount to collection of

evidence by the court commissioner, which is

not permissible under law. Further, on

perusal of the memo of instructions and the

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materials produced by both side in this case it

appears that, the parties are attempting to get

done the work of revenue/survey authorities

through the hands of process of this court

under the guise of civil litigation, which is not

the function or duty of a civil court. Therefore,

by considering the facts and circumstances of