Mr. K K Shekar vs Mr. K K Sathyanarayana
2021 Latest Caselaw 5729 Kant

                           1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 8TH DAY OF DECEMBER, 2021

                         BEFORE

     THE HON'BLE Mr. JUSTICE B.M. SHYAM PRASAD

          WRIT PETITION No.42488 of 2019 (GM-CPC)
                            C/W
          WRIT PETITION No.42481 OF 2019 (GM-CPC)

IN WRIT PETITION NO.42488 OF 2019

BETWEEN :
--------------

MR. K.K. SHEKAR
AGED ABOUT 64 YEARS
S/O LATE MR. K.S.KRISHNAN
R/O NO.460, 18TH MAIN ROAD
4TH T BLOCK
JAYANAGAR
BANGALORE - 560 041.
                                     ... PETITIONER

(BY SRI.RAMESHCHANDRA, ADV.)


AND :
-------

MR. K.K. SATHYANARAYANA
AGED ABOUT 72 YEARS
S/O LATE. MR. K.S. KRISHNA
R/O NO.460, 18TH MAIN ROAD
4TH T BLOCK
                        2




JAYANAGARA
BANGALORE - 560 041.
                                   ... RESPONDENT

(BY SRI.VACHAN B., ADVOCATE FOR RESPONDENT)

                        ---

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA WITH A
PRAYER TO QUASH THE ORDER DATED:17.08.2019
PASSED ON I.A.NO.10, BY THE HONBLE CITY CIVIL
COURT (CCH-10) IN FDP NO.92/2007 ANNEXURE-A CALL
FOR THE RECORDS IN FDP NO.92/2007, ON THE FILE
OF THE HONBLE CITY CIVIL COURT (CCH-10) AT
BANGALORE.

IN WRIT PETITION NO.42481 OF 2019

BETWEEN :
--------------

MR. K.K. SHEKAR
AGED ABOUT 64 YEARS
S/O LATE MR. K.S.KRISHNAN
R/O NO.460, 18TH MAIN ROAD
4TH T BLOCK
JAYANAGAR
BANGALORE - 560 041.
                                   ... PETITIONER
(BY SRI. HEMACHANDRA K.N., ADV.)

AND :
-------

MR. K.K. SATHYANARAYANA
AGED ABOUT 72 YEARS
                              3




S/O LATE. MR. K.S. KRISHNA
R/O NO.460, 18TH MAIN ROAD
4TH T BLOCK
JAYANAGARA
BANGALORE - 560 041.
                                            ... RESPONDENT

(BY SRI.VACHAN B., ADVOCATE FOR RESPONDENT)

                             ---

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA WITH A
PRAYER TO QUASH THE ORDER DATED:17.08.2019
PASSED ON I.A.NOS 8 AND 9 BY THE HONBLE CITY CIVIL
COURT (CCH-10) IN FDP NO.92/2007 ANNEXURE-A CALL
FOR THE RECORDS IN FDP NO.92/2007, ON THE FILE
OF THE HONBLE CITY CIVIL COURT (CCH-10) AT
BANGALORE.


     THESE WRIT PETITIONS COMING ON FOR ORDERS
THIS DAY, THE COURT PASSED THE FOLLOWING;

                         ORDER

The petitioner, is a defendant in a suit for partition, is

unsuccessful, and the suit that has resulted in

commencement of the final decree proceedings where a

Court Commissioner is appointed for reporting on whether

the subject property could be partitioned by metes and

bounds into seven shares. The petitioner's grievance in

this petition is because his request to summon the

Commissioner to cross-examine on the report is rejected.

2. The petitioner is one of the respondents in FDP

No. 92/2019 on the file of XVIII Additional City Civil Judge,

Bengaluru (for short, `the trial Court'). The details of the

writ proceedings are as follows:

W.P. No. 42488/2019: The petitioner has filed an

application [I.A. No.10] under Order XVI Rule 1 of CPC to

issue summons to the Court Commissioner who has filed

his report on 17.01.2015. The trial Court has rejected this

application by the impugned order dated 17.08.2019, and

this writ petition is filed impugning this order.

W.P. No. 42481/2019: The petitioner has filed

applications (I.A. Nos. 8 and 9) under the provisions of

Order XXI Rule 84, 85, 89(1a) of CPC to set aside the

auction sale held on 27.08.2018. The trial Court by its

order dated 17.08.2019 has rejected this application. The

petitioner has filed this petition impugning this order dated

17.08.2019.

3. The learned counsel for the parties are

unanimous in their submission that because the auction

sale held on 27.08.2018 has not culminated, this petition

in W.P. No. 42481/2019 does not survive for consideration.

They also submit that the question that will have to be

considered in the other writ petition in W.P. No.

42488/2019 is: whether the trial Court has erred in

rejecting the petitioner's application [I.A. NO.10] to

summon the Court Commissioner.

4. The facts necessary for a decision on this

question are stated thus:

4.1 The parties to the original proceedings are the

children of Sri. K.S. Krishnan, and the respondent has filed

the suit in O.S. No. 4765/2000 against the petitioner and

others for partition of two immovable properties viz., the

property bearing No. 460, 18th Main, 4th T Block,

Jayanagar, Bengaluru (the subject property) and another

immovable property. The petitioner has contested the suit

asserting inter alia that the subject property is bequeathed

in his favour by the father - Sri. K.S. Krishnan on

10.04.1985 and on the demise of the father on 01.02.2003,

he has absolutely succeeded to the subject property. The

petitioner had himself filed a suit for permanent injunction

in O.S. No. 3235/2012.

4.2 These suits in O.S. No. 4765/2000 and O.S. No.

3235/2012 are disposed by the common judgment dated

07.07.2007. The petitioner is unsuccessful in his appeals

before this Court in RFA Nos. 1899 and 1900/2007 with

these appeals being dismissed on 08.02.2012. The

petitioner, it is undisputed, is also unsuccessful before the

Hon'ble Supreme Court inasmuch as his special leave

petitioners are dismissed by the Hon'ble Supreme Court on

30.09.2013. In the meanwhile, the respondent had

commenced the final decree proceedings in FDP No.

92/2007 and these proceedings are continued after the

disposal of the aforesaid proceedings.

4.3 Insofar as the subject property, on the

respondent's application the civil Court has, on

12.09.2014, appointed a Commissioner to visit the subject

property and report on whether this property is partible.

The Commissioner has filed his report on 17.01.2015

reporting that the subject property cannot be divided by

metes ad bounds. The petitioner has filed his objections on

10.04.2015, but the trial Court has accepted the

Commissioner's report on 20.11.2015. It is thereafter the

present application, viz., I.A. No. 10 is filed for summoning

the Court Commissioner.

5. This Court must, at this stage, record that the

learned counsel for the parties are unanimous in their

submission that after the interim order granted by this

Court is vacated, the respondent has persuaded the trial

Court to pass orders for holding fresh auction and

accordingly auction has been held on 07.12.2021 but the

Court auction is yet to be held. As regards the other

immovable property that is the subject matter of suit, it is

submitted that auction is completed and the sale price is

deposited with the trial Court.

6. Sri. Ramesh Chandra, the learned counsel for

the petitioner submits that the petitioner has filed his

objections to the Commissioner's report specifically

contending that the Commissioner has filed his report

stating that the subject property cannot be partitioned into

seven shares as per the final decree without even visiting

the subject property; and if it can be demonstrated that the

Commissioner did not visit the subject property, with the

Commissioner being examined in person on oath, his report

must be rejected. He relies upon the provisions of Order

XXVI Rule 10(2) to contend that though the

Commissioner's report would be part of the record, a

person aggrieved by the report has a right to seek leave to

cross-examine the Commissioner to vindicate the

objections and as such, the petitioner has justifiably filed

his application to summon the Court Commissioner.

7. Sri. Ramesh Chandra next submits that even

from the Commissioner's report it is obvious that there is a

3 feet space along the southern boundary and, if this is so

it is indubitable that the subject property can be divided

into seven shares by metes and bounds with this 3 feet

open space along the southern boundary being used as

common access. He argues that the civil Court should

have considered these aspects as well in rejecting the

petitioner's application to summon the Commissioner, and

until necessary material is placed in this regard with the

Commissioner being examined, his report cannot be the

basis to hold that the subject property cannot be

partitioned into seven shares by metes and bounds.

8. Sri. Ramesh Chandra makes a rather feeble

effort to contend that the measurement of the subject

property is also disputed, and this Court must observe the

effort is feeble because it is not disputed that the subject

property, even according to the petitioner, measures 50 feet

North to South and 75 feet East to West and bounded on

the western by access/road.

9. Sri. Vachan B., the learned counsel for the

respondent while not disputing the proposition canvassed

by Sri. Ramesh Chandra relying upon the provisions of

Order XXVI Rule 10(2) of CPC, submits that the petitioner

cannot as a matter of right assert that the Court

Commissioner must be cross-examined. The petitioner

should have placed some material on record to persuade

the civil Court to accept that objections are so substantial

that the Commissioner must be cross-examined to

elucidate his report. However, in the present case, the

measurement of the subject property cannot be disputed

and if the measurement cannot be disputed, it would be

obvious that the property cannot be divided into seven

shares by metes and bounds. The Commissioner's report is

also the same and therefore, this Court must not interfere

with the impugned order.

10. This Court has anxiously considered the rival

submissions and perused the record. Though the civil

Court has rejected the petitioner's application adverting to

the petitioner's conduct in taking repetitive opportunities,

this Court has examined the records to decide on the

petitioner's objection. It is trite, especially with the decision

of the Hon'ble Supreme Court in M. Siddiq (Ram

Janmabhumi Temple-5J) v. Suresh Das [reported in

(2020) 1 SCC 1] that a Report filed by a Commissioner on

his appointment as such shall be evidence in the matter,

and the Report could be impeached as regards (i) any of the

matters referred, therein, (ii) any of the matters mentioned

in the report, (iii) as to the report, and (iv) as to the manner

in which the investigation is made i.e., on both matters of

procedure followed in conducting the investigation and the

substantive aspects of the report. The Hon'ble Supreme

Court has held that:

"A party may avail of that opportunity by seeking the examination of the Commissioner on matters bearing upon the report. A party may also lead evidence of its own witnesses who seek to controvert the methodology or the findings of the Commissioner appointed for conducting a scientific investigation. The right of a party to object to the report of the Commissioner is not abrogated merely because the Commissioner is not called for cross-examination. Much will depend on the nature of the objections which are sought to be urged by a party before the Court though the Commissioner was not called for examination".

[underlining is by this Court]

The litigation has prevailed for over two decades without

any closure and therefore there must be expeditious

closure. Further, it is not that everyone who is cited as a

witness is automatically summoned, and the true rule is

that if grounds are established a witness be will be called

and if the request to summon a witness is belated,

vexatious or frivolous, it is not accepted. This Court is of

the considered view that the petitioner's objection and

request must be considered in the light of these

propositions.

11. The petitioner's first objection is that the

Commissioner has not visited the subject property, and in

support of this objection it is asserted that all the parties

are not signatories and only some of them have signed the

mahazar drawn by the Commissioner on 30.12.2014, the

day on which he has visited the subject property. Indeed

the petitioner has not signed the Mahazar, but the Court

Commissioner has recorded that the petitioner has refused

to sign stating he had applied for stay, and he had to

attend the Small Causes Court and he was not in a position

to say when he could return. This Court, on perusal of the

record and the reason recorded by the Commissioner in the

Mahazar, cannot reasonably opine that the petitioner is

justified in this objection.

12. The petitioner's other objection is with 3 feet

open space along the southern boundary, the subject

property can be divided into seven equal parts. This Court

is not persuaded to opine that this objection, given the

measurement of the property viz., 50 feet along the road

side and 75 feet in depth, that this property could be

divided into seven shares. If this property is divided as

suggested, each share holder will get open space of about

47' X 10', and this would be impractical. Therefore, this

Court concludes that the petitioner has not made out a

case for permission to cross-examine the Commissioner.

13. At this stage it is also submitted on behalf of

the petitioner that the petitioner has his belongings and he

would be put to difficulty if the subject property were to be

auctioned and there is a direction to deliver possession to

the successful auction purchaser. This Court would only

observe that it would be open to the petitioner to make

necessary application before the civil Court in this regard,

and in the event such application is made, it would be

considered reasonably by the trial Court.

The petitions stand disposed of accordingly.

SD/-

JUDGE

LRS.