Sri Siddappa vs Smt Saroja
2022 Latest Caselaw 3589 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 03RD DAY OF MARCH, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE E.S. INDIRESH

       WRIT PETITION NO.3611 OF 2022(GM-CPC)


BETWEEN:

SRI. SIDDAPPA
S/O LATE BASAVAIAH,
AGED ABOUT 57 YEARS,
RESIDENT OF NO.2613,
4TH CROSS ROAD,
K.G. KOPPAL,
MYSURU-583 231.
                                          ...PETITIONER
(BY SRI. GOVINDARAJ. K., ADVOCATE)

AND:

1. SMT. SAROJA
   W/O LATE K.S. NARAYANA,
   AGED ABOUT 58 YEARS.

2. SRI. M. SHYLESH KUMAR
   S/O LATE K.S. NARAYANA,
   AGED ABOUT 36 YEARS,

  BOTH ARE RESIDING AT NO.2614,
  CH-14, 4TH CROSS ROAD,
  K.G. KOPPAL,
  MYSURU-583 231.
                                       ....RESPONDENTS
                                    2



     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED ON THE IA NO.12 IN THE ORIGINAL SUIT
NO.1386 OF 2013 BY THE COURT OF IV ADDITIONAL CIVIL
JUDGE AND JMFC AT MYSURU DATED 04TH OCTOBER, 2021 AS
PER ANNEXURE-G; AND ETC.

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

In this writ petition, the petitioner has assailed the order

dated 04th October, 2021 passed in Original Suit No.1386 of

2013 by the Court of IV Additional Civil Judge and JMFC, Mysuru

(for short, hereinafter referred to as trial Court).

2. Succinctly, the facts of the case are that the plaintiff has

filed Original Suit No.1386 of 2013 on the file of the trial Court

seeking relief of mandatory injunction, directing the defendant to

demolish the illegal construction made in the set back of 3 feet

width towards eastern side of the plaint schedule property, so

also, in the western side set back of the property No.2613

situated at 4th Cross, K.G. Koppal, Mysuru and also sought for

consequential relief of permanent injunction. The defendant

entered appearance and filed written statement. After

completion of the evidence, the plaintiff has filed the application

under order XXVI Rule 9 of the Civil Procedure Code seeking an

order of appointment of the Assistant Executive Engineer,

Mysuru City Corporation, Mysuru as Court Commissioner to

inspect the plaint schedule property and to report regarding the

violation of rules by the defendant. The said application was

resisted by the defendants/petitioner herein. The trial Court,

after considering the material on record, by its order dated 04th

October, 2021 allowed the said application. Being aggrieved by

the same, the defendant has preferred this writ petition.

3. Sri. Govindaraj. K, learned counsel appearing for

petitioner submits that the appointment of the Commissioner by

the trial Court as per the IA.12 is contrary to the factual aspects

of the case. He further submits that the Commissioner cannot

be appointed for collection of evidence and contended that the

said application was filed by the plaintiff after the completion of

evidence, which ought not to have been entertained by the

Court. Hence, sought for interference of this Court. In order to

buttress his submission, he relied upon the judgment of this

Court in the case of ANITHA DEV vs. SUSHEELA BAI reported

in LAWS(KAR)-2018-8-12 and submitted that said judgment is

squarely applicable to the factual aspect of the case. Therefore,

he contended that the impugned order passed by trial Court

requires to be interfered with in this writ petition.

4. Having heard the learned counsel appearing for

petitioner, I have carefully considered the relief sought for by

the plaintiff in the plaint which reads as under:

"a) For relief of Mandatory injunction directing the defendant, his agents, servants or anybody claiming through him to demolish he illegal construction made in the 3 feet width set back towards east of the plaint schedule property and in the western side set back of the property No.2613, 4th Cross, K.G. Koppal, Mysore.

b) For the relief of Permanent injunction against the defendant, restraining the defendant his agents, servants or anybody claiming through him from demolishing or damaging any portion of the eastern wall of the plaint schedule property in any manner.

c) Grant costs of the suit and for such other reliefs.

5. In the background of the relief sought for by the

petitioner, I have carefully considered the finding recorded by

the trial Court. Undisputably, the suit is filed for the relief of the

mandatory injunction and for consequential relief of permanent

injunction. It is the case of the plaintiff that the suit schedule

property was acquired by the plaintiff as per the partition decree

in Original Suit No.311 of 1998. The plaintiff was in possession

of the suit schedule property. It is also forthcoming from the

finding recorded by the trial Court at Paragraph 15 of the

impugned order that there is a common wall bifurcating the

properties of both the plaintiff and the defendant, and if there is

a separate wall that exist, the plaintiff can remove the damaged

wall which is there in his boundary and therefore, taking into

consideration that both the plaintiff and defendants are alleging

the encroachment made by either of the parties, the trial Court

accepted the application filed by the plaintiff in IA.12. The

judgment referred to by the petitioner is not applicable to the

facts of the present case, accordingly, applying the principles

enunciated in the law declared by this Court in the case of

MISS. RENUKA vs. SRI. TAMMANNA reported in ILR 2007

KAR 3029, I am of the view that the impugned order passed by

the trial Court is just and proper which does not call for any

interference in this writ petition.

Accordingly, writ petition is dismissed.

Sd/-

JUDGE

ARK