Smt Noor Unnisa vs Sri Shivaraju on 28 March, 2013

Karnataka High Court

Smt Noor Unnisa vs Sri Shivaraju on 28 March, 2013
Author: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 28th DAY OF MARCH 2013

BEFORE

THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA

WRIT PETITION NO.12740/2013 (GM-CPC)

BETWEEN:

SMT NOOR UNNISA

W/O MOHAMMED ASHROFF
AGED 49 YEARS
R/A B.K.ROAD,
NEW MASJID MOHALLA
MAGADI TOWN-562 120.
... PETITIONER

(BY SRI.KALEEMULLAH SHARIFF, ADV.,)

AND:

SRI SHIVARAJU
S/O SHIVANNA
AGED 45 YEARS
R/A SOMESWARA GUDDI COLONY
MAGADI TALUK-562 120.
... RESPONDENT

(BY SRI.KESHAVA MURTHY H.B., ADV.,)

THIS WRIT PETITION IS FILED UNDER ARTICLES

226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE IMPUGNED ORDER DATED
15.2.2013 PASSED BY THE LEARNED PRINCIPAL CIVIL
JUDGE AND JMFC MAGADI IN OS.NO.170/2006
PASSED IN I.A. VIDE ANNEXURE-J AS ILLEGAL AND
ETC.,
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 Smt Noor Unnisa vs Sri Shivaraju on 28 March, 2013

THIS WRIT PETITION COMING ON FOR

PRELIMINARY HEARING, THIS DAY, THE COURT
MADE THE FOLLOWING:

ORDER

Petitioner is the plaintiff and the respondent is the defendant in O.S.NO.170/2006 pending on the
file of the Civil Judge (Jr.Dn) at Magadi. Suit has been instituted to pass a decree of permanent
injunction against defendant, in respect of the suit schedule property. Written statement was filed
by the defendant. Issues have been raised. Based on the pleadings, trial has taken place. After
closure of the trial, defendant filed an I.A. on 30.1.2013, under Order 26 Rule 9 CPC, to appoint a
Surveyor as Commissioner to identify the location of the plaint schedule property with its survey
number and boundary and to submit the report. Plaintiff filed statement of objections dated
31.1.2013. The learned trial Judge having heard the learned advocates on both sides and being of the
opinion that there is a dispute with regard to the location of the said property and that the evidence
on record is not sufficient for him to come to a conclusion and a report from Taluka Surveyor
regarding the location of the disputed property is very much required to elucidate the matter in
dispute, by placing the ratio of decisions reported in ILR 2001 KAR 5013 allowed the application
and appointed the Taluka Surveyor as the Commissioner to identify the location of the plaint
schedule property with its survey number and the boundary and to submit the report. Assailing the
said order, this writ petition has been filed.

2. Learned counsel appearing for the petitioner contended that there is sufficient material placed on
record of the trial Court to prove the case of the plaintiff and in the circumstances, there being no
need for appointment of a Commissioner, the trial Court has committed an irrational act in passing
the order dated 15.2.2013. Learned counsel submitted that the photographs produced along with
writ petition would show the location of the property with the neighboring structures.

3. A perusal of the record would show that there is a dispute with regard to the identification of the
suit property. Both sides are making claim and counter claim to the suit property. Evidence has been
adduced by both sides. The learned trial Judge having perused the record, has found that there is no
sufficient evidence on record from which the location of the disputed property can be made out and
to elucidate the matter in dispute appointed the Court Commissioner.

4. Order 26 Rule 9 CPC confers jurisdiction on the trial Court to order commission to make local
inspection. The said provision enables the Court to make local investigation, which may be required
for the purpose of elucidating any matter in dispute, to issue a commission to such person as it
thinks fit, directing him to make such investigation and to report thereon. In this case, the Taluka
Surveyor being the competent person has been appointed as the Court Commissioner. Since, both
the parties can file memo of instructions before the Court Commissioner who has an obligation to
take note of the same and execute the commission, the impugned order is not prejudicial to the
interest of the petitioner. In the said view of the matter, there is no need to entertain this writ
petition in exercise of writ jurisdiction under Article 227 of the Constitution of India.

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 Smt Noor Unnisa vs Sri Shivaraju on 28 March, 2013

In the result, writ petition fails and shall stand rejected. However, it is open for the petitioner to file
a memo of instructions before the trial court or before the Court Commissioner, within one week
period.

Sd/-

JUDGE PB

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