Karnataka High Court
Sri A Giridharan vs Dr A Ramani on 18 February, 2022
Bench: Ashok S.Kinagi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI
WRIT PETITION NO.3803 OF 2022 (GM-CPC)
BETWEEN:
SRI. A. GIRIDHARAN,
AGED ABOUT 58 YEARS,
S/O. LATE N.D. ABEDANANDAN,
NO.35, POTTERY TOWN LAYOUT,
WILLIAMS TOWN EXTENSION,
BENGALURU - 560 045.
...PETITIONER
(BY SRI. IMRAN PASHA, ADVOCATE)
AND:
DR. A. RAMANI,
AGED ABOUT 61 YEARS,
W/O RAJENDRA PRASAD,
NO.D-3, ESI QUARTERS,
II FLOOR, WILLIAMS TOWN,
BANGALORE - 560 045.
....RESPONDENT
(BY SRI. K.M.JAGANATH, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 14.02.2022 PASSED ON IA FILED U/S 151
OF CPC BY THE HONBLE XIII ADDL CITY CIVIL JUDGE,
(CCH.NO.22) MAYOHALL, BANGALORE IN
O.S.NO.15192/2004 C/W O.S.NO.3538/2004 C/W AS PER
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ANNEXURE-J AND IN REVERSAL OF THE SAME, ALLOW
THE SAID IA FILED BY THE PLAINTIFF/PETITIONER BY
PERMITTING THE PETITIONER TO TAKE OUT PROCESS ON
THE COURT COMMISSIONER AND ALSO TO AFFORD
OPPORTUNITY TO THE PETITIONER TO ADDRESS THE
ARGUMENTS ON MERITS AFTER RECEIPT OF THE REPORT
FROM THE COURT COMMISSIONER.
THIS WRIT PETITION COMING ON FOR
'PRELIMINARY HEARING' THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner aggrieved by the order dated
14.02.2022 passed in O.S.No.15192/2004 C/w
O.S.No.3538/2004 vide Annexure-J has filed this writ
petition.
2. Brief facts leading to filing of this petition are
as under:
The petitioner filed a suit in O.S.No.3538/2004 for
the relief of permanent injunction and also sought for
mandatory injunction directing the respondent to demolish
the structure put up which obstruct free flow of air, light
and ventilation and movement in ground floor and such
other relief. The respondent has also filed a suit in
O.S.No.15192/2004 for the relief of permanent injunction
restringing the petitioner from objecting, preventing and
obstructing the petitioner from construction in the suit
schedule property and also sought for other relief. In the
said suit, the petitioner has filed an application for
appointment of Court Commissioner to conduct the local
inspection. The said application came to be rejected by the
trial Court. The petitioner aggrieved by the order on the
said application, filed a writ petition in
W.P.No.31410/2010. This Court, vide order dated
12.11.2010, allowed the writ petition and set aside the
order passed by the trial Court and consequently, allowed
the application filed by the petitioner for appointment of
Court Commissioner to conduct the local inspection.
Several names were proposed for appointment of Court
Commissioner by both the side, finally the petitioner
proposed two names in IA.No.13 and the respondent
proposed one name in her objection. After hearing the
matter, the trial Court has posted the matter for orders
and no such order passed on IA.No.13 was uploaded in the
website and E-Court services. However, on 08.02.2022,
the trial Court posted the matter for argument after
recording that the order passed on IA.No.13 is not
complied with and also adjourned the matter to
10.02.2022 and recorded that the counsel appearing for
the petitioner and also counsel appearing for the
respondent remained absent and taken the argument as
heard and posted the matter for judgment on 21.02.2022.
The petitioner filed an application for advancing the case
and also filed an application seeking permission to take a
steps for the Court Commissioner. The learned counsel for
the respondent endorsed on the said application has no
objection. The trial Court rejected the application filed by
the petitioner. Hence, this writ petition.
3. Heard the learned counsel for the petitioner
and also the learned counsel for the respondent.
4. Learned counsel for the petitioner submits that
the petitioner has filed an application seeking for
appointment of Court Commissioner to conduct the local
inspection and the same came to be allowed by this Court
in the aforesaid writ petition. He submits that due to
Standard Operating Procedure issued by the High Court,
the learned counsel appearing for the petitioner could not
able to attend the Court physically. Hence, the petitioner
and the respondent were not aware about the order
passed by the trial Court on IA.No.13. Hence for the said
reason, the petitioner could not able to take steps. He
submits that the trial Court without hearing the argument
on both the side, posted the matter for judgment. Hence,
on these ground, he prays to allow the writ petition.
5. Per contra, learned counsel for the respondent
submits that he has no objection to allow the writ petition.
6. Heard and perused the records and considered
the submissions made by the learned counsel for the
parties.
7. It is not in dispute that the petitioner and the
respondent have filed a suit and the said suit was pending.
In the suit filed by the petitioner, the petitioner has filed
an application seeking for appointment of the Court
Commissioner to conduct the local inspection. The said
application came to be rejected by the trial Court. The
petitioner aggrieved by the order, filed a writ petition in
W.P.No.31410/2010. This Court vide order dated
12.11.2010, allowed the writ petition and consequently,
appointed a Court Commissioner to conduct the local
inspection. The trial Court has adjourned the matter to
suggest the name of the Court Commissioner. The
petitioner has filed an application on I.A.No.13 proposed
two names and the respondent has also proposed one
name in her objection. The trial Court after hearing on
I.A.No.13 passed the order on 14.02.2022. The High Court
issued Standard Operating Procedure wherein, due to the
Covid-19 the advocates are prevented for entering into the
Court premises. The trial Court has passed an order on
I.A.No.13. Further, the petitioner has produced the copy of
extract of day to day proceedings of the suit and uploaded
on the internet and E-Court services in O.S.No.3538/2004
as per Annexure-A. From the perusal of Annexure-A, it
does not indicate that the trial Court has web hosted the
order passed on I.A.No.13 on the Court website. The trial
Court without considering the said aspect has the posted
the matter for argument and considering the actions of the
parties, posted the matter for judgment. Thereafter, the
petitioner has filed an application seeking permission to
take a steps as per the order passed on I.A.No.13. The
trial Court has rejected the said application. The trial Court
without considering the said absence has proceeded to
pass the impugned order. The impugned order passed by
the trial Court is arbitrary and erroneous. Hence, on these
grounds, the writ petition is liable to be set aside.
Accordingly, I proceed to pass the following:
ORDER
i. The writ petition is allowed.
ii. The impugned order is set aside.
iii. The petitioner is directed to take steps within a
period of eight days from date of receipt of
copy of this order, failing which, the petitioner
would not be entitled for benefit of this order.
iv. Since the suit is of the year 2004, the trial
Court is directed to dispose of the suit as
expeditiously as possible.
Sri K.M.Jaganath, learned counsel undertakes to file
vakalath within a period of 15 days.
Sd/-
JUDGE
ssb
