The Karnataka High Court allowed a writ petition filed under Article 227 of the Constitution of India, praying to quash the order dated 02.01.2023 passed by the Addl. city civil and sessions judge at Bengaluru and consequently allow the application filed by the Petitioner. The Court observed that if the subject matter of the suit is immovable property, the plaint shall contain a description of the property which would be sufficient to identify it with boundaries or numbers.
Brief Facts:
The respondent/plaintiff filed suit for a judgment and decree of permanent mandatory injunction against the defendant from interfering with the suit schedule property, possession of the suit schedule property, and consequential other reliefs. Before framing of issues, the respondent/plaintiff filed an application under Order XXVI Rule 9 of CPC to appoint a Court Commissioner for local inspection of the suit schedule property to find out its location, boundaries, property numbers of the adjacent properties, etc.
The Trial Court appointed the commissioner. Aggrieved, the petitioner is before this Court.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the purpose for which the plaintiff has sought the appointment of Commissioner is not permissible. It was submitted that in terms of Order VII Rule 3 of CPC, the plaintiff while submitting the plaint shall describe the property in the plaint which shall be sufficient to identify it with boundaries or numbers as in the record of settlement or survey. When that is the requirement, the respondent/plaintiff cannot seek the appointment of a Commissioner to identify its location, boundaries, property numbers of adjacent properties, etc.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that in the facts and circumstances of the present case, the appointment of Commissioner would be necessary, and the appointment of Commissioner even before the evidence would aid the Court in the proper adjudication of the dispute between the parties. He further submitted that the defendant disputes the plaint schedule property. As such, it has become necessary for the plaintiff to file an application for appointment of Commissioner.
The Court noted that the prayer in the above application is to appoint a Commissioner to inspect the suit schedule property to find out its location, boundaries, and property numbers of the adjacent properties located on the Northern, Southern, Western, and Eastern sides, which means the plaintiff is not definite about the suit schedule property.
The Court observed that when a suit for permanent injunction and possession is filed, the identity of the property shall be clear and definite. If the subject matter of the suit is immovable property, the plaint shall contain a description of the property which would be sufficient to identify it with boundaries or numbers. The plaintiff/respondent herein has not sought for appointment of a Commissioner to measure the suit schedule property nor is there an allegation of encroachment. The plaintiff has filed an application for the appointment of a Commissioner to find out the location of the suit schedule property, its boundaries, and the property numbers of the adjacent properties. In a suit for permanent injunction and possession, if the plaintiff is not definite about her suit schedule property, to find out her property, the Commissioner cannot be appointed.
The decision of the Court:
The Karnataka High Court, allowing the petition, held that the impugned order dated 02.01.2023 under Order XXVI Rule 9 of CPC is set aside.
Case Title: Smt. Kavitha M vs Smt. Asha M Jain
Coram: Hon’ble Justice S. G. Pandit
Case no.: WRIT PETITION NO. 1168 OF 2023 (GM-CPC)
Advocate for the Petitioner: Mr. Chandrashekar H B
Advocate for the Respondents: Mr. Parasmal B @ Paras Jain
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