Karnataka High Court
Sri Chinnappa vs Sri Thamanna on 13 June, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI
WRIT PETITION NO. 10193 OF 2018 [GM- CPC]
BETWEEN:
SRI.CHINNAPPA
SON OF THE LATE MUNISWAMAPPA
AGED ABOUT 62 YEARS
RESIDING AT NO.134,
BALACHANDRA LAYOUT, III CROSS,
BABUSAPALYA, KALYAN NAGAR POST
BENGALURU - 560 043.
. ...PETITIONER
(BY SRI. K.N. NARAPPA, ADVOCATE
FOR SRI JANARDHANA G., ADVOCATE)
AND:
1. SRI.THAMANNA
S/O LATE CHIKKA MUNISHAMAPPA
AGED ABOUT 66 YEARS
RESIDING AT VEERANNA PALYA, NAGAWARA,
BENGALURU NORTH TALUK 560 045.
2. SRI.MUNIYAPPA
S/O. LATE DODDAMUNIYAPPA
AGED ABOUT 71 YEARS
RESIDING AT VEERANNAPALYA, NAGAWARA
BENGALURU NORTH TALUK 560 045.
...RESPONDENTS
(BY SRI H.S. RAMAMURTHY, ADVOCATE FOR R1
SRI PRAKASH RAO JADHAV, ADVOCATE FOR R2)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH
THE COMMON ORDER DATED 27.01.2018 IN O.S.
NO.15222/2005 PASSED BY THE XIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT,
BENGALURU (CCH-22) UNDER ANNEXURE-G IN
ALLOWING THE APPLICATIONS FILED BY THE
RESPONDENT / 2ND DEFENDANT I.A. UNDER ORDER
XXVI RULE 10(2) READ WITH SECTION 151 OF CODE OF
CIVIL PROCEDURE AND IA UNDER ORDER XVIII, RULE
17 READ WITH SECTION 151 OF CODE OF CIVIL
PROCEDURE.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING 'B' GROUP, THIS DAY THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner aggrieved by the order dated
27.01.2018 passed in O.S.No.15222/2005 by the
learned XIII Additional City Civil and Sessions Judge,
Mayo Hall Unit, Bengaluru (CCH-22) has filed this writ
petition.
2. Brief facts leading to filing of this writ
petition are as under:
The petitioner filed a suit in O.S.No.15222/2005
for relief of mandatory injunction and permanent
injunction. The said suit came to be dismissed vide
judgment and decree dated 08.02.2012.
The petitioner aggrieved by the judgment and
decree passed in O.S. No.15222/2005 by the Trial
Court preferred an appeal before this Court in RFA
No.422/2012. This Court vide judgment dated
28.02.2013 set aside the order and remanded the
matter to the Trial Court to appoint a Court
Commissioner to find out the encroachment of the suit
scheduled property by the respondent, if any as
contended by the petitioner.
3. The Trial court allowed the petition vide
order dated 27.01.2018 and appointed a Court
Commissioner. The Court Commissioner submitted a
report. When the case was set out for arguments, the
second respondent filed an application to re-open the
case and to recall P.W.1 for the cross-examination and
also filed an application to permit the respondent to
cross-examine the Court Commissioner. The said
application was opposed by the petitioner. The Trial
court after hearing the parties allowed the petition
filed by respondent No.2. Hence, this writ petition.
4. Heard Sri. K.N.Narasappa for
Sri.Janardhana.G., learned counsel appearing on
behalf of the petitioner and the Sri. H.S.Ramamurthy
appearing for respondent No.1 and Sri.Prakash Rao
Jadhav for respondent No.2.
5. Learned counsel for the petitioner submits
that respondent No.2 filed an application when the
case was posted for arguments. He submits that the
application is filed only with an intention to protect the
proceedings as the matter is of the year 2005. Hence,
he submits that the order passed by the Trial
Court is arbitrary and erroneous and hence on this
ground he prays to allow the petition.
6. Per contra, learned counsel for respondent
No.2 supports the impugned order.
7. Perused the records and considered the
submission of the learned counsel for the parties.
8. It is not in dispute that the petitioner has
filed a suit for Mandatory Injunction and Permanent
Injunction. The said suit came to be dismissed by the
Trial Court.
9. The petitioner being aggrieved by the
judgment and decree passed by the Trial Court
preferred an appeal before this Court. This Court
allowed the appeal and remanded the matter to
the Trial Court and directed the Trial Court to appoint
Court Commissioner and to find out the encroachment
of the suit schedule property. In terms of the order
passed by this Court, the Trial Court appointed ADLR
as a Court Commissioner. The Court Commissioner
submitted a report. It is the contention of respondent
No.2 that there is an ambiguity in the report of the
Court Commissioner, therefore, it is necessary to
cross-examine the Court Commissioner on the report
submitted by him. The Trial Court has observed in the
impugned order that there is an ambiguity in the
report submitted by the Court Commissioner, if an
opportunity is provided to respondent No.2 to cross-
examine the Court Commissioner, no justice would be
caused to the petitioner.
10. After considering the material on record,
the Trial Court has justified in allowing the application.
Hence, I do not find any ground to interfere with the
impugned order.
11. Accordingly, the writ petition is dismissed.
12. The said suit is of the year 2005, Trial
Court is requested to dispose of the matter as early as
possible within a period of eight months from the date
of receipt of copy of this order.
Sd/-
JUDGE
GVP
