M V Devaprasad vs Gregory Lobo
2021 Latest Caselaw 929 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF JANUARY, 2021

                       BEFORE

        THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

         WRIT PETITION NO.684 OF 2021 (GM-CPC)

BETWEEN

M V DEVAPRASAD
S/O M VEERASHETTY,
AGED ABOUT 60 YEARS,
AGRICULTURIST,
R/O MUGTHIHALLI VILLAGE AND POST,
CHIKKAMAGALURU TALUK AND
DISTRICT 577101.                  ... PETITIONER

(BY SRI PAVAN KUMAR G, ADVOCATE)

AND

GREGORY LOBO
S/O LATE FEDRICK LOBO,
AGED ABOUT 48 YEARS,
R/O CHALUVI NILAYA, 2ND CROSS,
1ST STAGE, GANDHI NAGAR,
CHIKMAGALUR CITY 577101.            ... RESPONDENT

    THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER 23.12.2020 IN O.S.NO.189/2020
PASSED BY THE 2ND ADDL CIVIL JUDGE AND JMFC AT
CHIKKAMAGALURU ON INTERIM APPLICATION (I.A.NO.6)
UNDER ORDER XXVI RULE 9 READ WITH SECTION 151 OF
THE CODE OF CIVIL PROCEDURE AS FOUND AT
ANNEXURE-A AND ETC.

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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                             ORDER

Petitioner being the plaintiff in an injunctive suit in

O.S.No.189/2000, is knocking at the doors of writ court for

laying a challenge to the order dated 23.12.2020, a copy

whereof is at Annexure-A, whereby the learned II Addl. Civil

Judge, Chikkamagaluru, having rejected his application in

I.A.No.6 filed u/o XXVI Rule 9 r/w Section 151 of CPC, 1908,

has refused to appoint the Court Commissioner to ascertain

whether further construction has been made by the

respondent in violation of this Court's judgment dated

18.1.2020, a copy whereof is at Annexure-D, whereby the

earlier Writ Petition Nos.12702, 12720, 12731/2020 have

been disposed off.

2. Having heard the learned counsel for the parties

and having perused the Petition Papers, this Court declines to

grant indulgence in the matter since the request is made for

appointment of Court Commissioner even before the

commencement of the trial; several High Courts in the

country have taken the view that ordinarily, appointment of

Court Commissioner can be sought for after the trial

commences if not after it's accomplishment.

In the above circumstances, this Writ Petition is

disposed off reserving liberty to the petitioner to revise his

request for appointment of Court Commissioner; while

treating such revival on merits, the observations in the

impugned order shall not come in the way.

All contentions of the parties are otherwise kept open.

Sd/-

JUDGE

cbc