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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JANUARY 2022
BEFORE
THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.201954/2018 (GM-CPC)
BETWEEN:
1.
Mallappa S/o Shankereppa Budihal,
Aged about 48 years, Occ: Agriculture,
R/o Jalawad, Tq. Sindgi, Dist. Vijayapur.
2.
Bhimaraya @ Bhimappa
S/o Shankereppa Budihal,
Aged about 41 years, Occ: Agriculture,
R/o Jalawad, Tq. Sindgi, Dist. Vijayapur.
... Petitioners
(By Sri. G.G.Chagashetti, Advocate)
AND:
1.
Sangappa S/o Shankereppa Natikar,
Aged about 74 years, Occ: Agriculture,
R/o Jalawad, Tq. Sindgi,
Dist. Vijayapur - 586 101.
2.
Ramappa S/o Shankereppa Budihal,
Aged about 43 years, Occ: Agriculture,
R/o Jalawad, Tq. Sindgi,
Dist. Vijayapur - 586 101.
3.
Shivashankereppa @ Shivashankar
S/o Gulappa Natikar,
2
Aged about 50 years, Occ: Agriculture,
R/o Jalawad, Tq. Sindgi,
Dist. Vijayapur - 586 101.
4.
Dyamawwa W/o Shivappa Natikar,
Aged about 43 years, Occ: Household,
R/o Jalawad, Tq. Sindgi,
Dist. Vijayapur - 586 101.
... Respondents
(Sri R.S. Sidhapurkar, Advocate for R1;
R2 to R4 - served)
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to issue a writ of certiorari
and to quash the order dated 30.05.2018 passed by the
learned Addl. Senior Civil Judge & JMFC, Sindagi on IA in
OS No.107/2011, produced at Annexure-E and Issue any
other suitable writ or order or direction as this Court
deems fit under the facts and circumstances of the case,
including an order of cost.
This petition coming on for Preliminary Hearing in 'B'
Group this day, the Court made the following:
The appointment of a Court Commissioner for conducting a local inspection is not illegal or infirm unless it results in a miscarriage of justice.
Headnote:
LOCAL INSPECTION - APPOINTMENT OF COURT COMMISSIONER - [Rahul S. Shah vs. Jinendra Kumar Gandhi and others reported in (2021) 6 SCC 418]
Fact of the Case:
The petitioner challenged the order of the Trial Court appointing a Court Commissioner for conducting a local inspection under Order XXVI Rule 9 of CPC.
Finding of the Court:
The High Court held that the impugned order of the Trial Court was not illegal or infirm and did not result in a miscarriage of justice.
Issues: Whether the Trial Court erred in appointing a Court Commissioner for conducting a local inspection.
Ratio Decidendi: The High Court relied on the Supreme Court decisions in Rahul S. Shah vs. Jinendra Kumar Gandhi and others and Radhey Shyam and another vs. Chhabi Nath and others to hold that the appointment of a Court Commissioner for conducting a local inspection is not illegal or infirm unless it results in a miscarriage of justice.
Final Decision: The High Court dismissed the petition and upheld the Trial Court's order appointing a Court Commissioner for conducting a local inspection.
This petition is directed against the order dated
30.05.2018 passed in O.S.No.107/2011 by the Addl.
Senior Civil Judge & JMFC, Sindagi, whereby the
application filed by respondent No.1/plaintiff under
Order XXVI Rule 9 of CPC for appointment of a Court
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Commissioner to conduct local inspection was allowed
by the Trial Court.
After having heard the learned counsel for
the parties and on perusal of the material on record,
in the light of the decision of the Hon'ble Apex Court
in the case of Rahul S. Shah vs. Jinendra Kumar
Gandhi and others reported in (2021) 6 SCC 418,
I am of the considered opinion that the impugned
order passed by the Trial Court appointing a Court
Commissioner for the purpose of conducting local
inspection does not suffer from any illegality or
infirmity resulting in miscarriage of justice and
warranting interference by this Court as held by the
Hon'ble Apex Court in Radhey Shyam and another
vs. Chhabi Nath and others reported in (2015) 5
SCC 423.
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Accordingly, I do not find any merit in the
petition and the same is hereby dismissed. It is
however, made clear that all rival contentions on
merits are kept open and liberty is reserved in favour
of the parties to file memo of instructions before the
Court Commissioner as well as objections to his report
and examine/cross-examine him after he submits his
report, if they so desire.
Sd/-
JUDGE
LG
