Sri. Rathnakar Kambli vs Sri. Joseph M Dsouza
2022 Latest Caselaw 4927 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF MARCH, 2022

                        BEFORE

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

          W.P. NO. 23184 OF 2021 (GM-CPC)

BETWEEN

SRI RATHNAKAR KAMBLI
AGED ABOUT 72 YEARS
S/O LATE DEVU KAMBLI
R/AT SOMANATHADHAMA
PERMUDE POST, PERMUDE
BAJPE, MANGALURU TALUK.
REPRESENTED BY HIS GPA HOLDER
SRI PRAMOD HEGDE
S/O K B HEGDE, THIRUMALA,
OPP.BEJAI CHURCH, MANGALORE,
DAKSHINA KANNADA - 575004.

                                          ...PETITIONER
(BY SRI UDAYA SHANKAR RAI P, ADVOCATE)

AND

SRI. JOSEPH M D'SOUZA
S/O LATE JOHN D'SOUZA
AGED ABOUT 76 YEARS
R/AT TWINKILING STAR HOUSE
NEERMARGA
MANGALURU TALUK

                                         ....RESPONDENT

(BY SRI M SUDHAKAR PAI, ADVOCATE FOR C/RESPONDENT)
                               2




      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 26.11.2021 PASSED BY THE PRINCIPAL SENIOR
CIVIL JUDGE AND CJM, MANGALURU, D.K., IN RA NO.93/2017
VIDE ANNX-J AND ETC.,

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

                           ORDER

This writ petition is filed by the respondent in RA No.93

of 2017 on the file of the II Additional Senior Civil Judge and

CJM, Mangalore, D.K, allowing the application in IA.II.

2. Brief facts are that the respondent herein has

filed OS No. 22 of 2013 (renumbered as OS No.770 of 2013)

before the IV Additional Civil Judge and JMFC, Mangaluru,

D.K., seeking relief of permanent injunction against the

defendant and the said suit came to be dismissed by the

judgment and decree dated 18.02.2017. The said judgment

and decree passed by the Trial Court, was assailed before the

First Appellate Court, in RA No. 93 of 2017. The said

proceedings are pending consideration before the First

Appellate Court. The respondent herein has filed IA.II under

Order XXVI Rule 9 read with Order 41 Rule 27 of Code of

Civil Procedure seeking appointment of Court Commissioner

to hold local inspection of plaint 'A' schedule property with

assistance of competent Surveyor attached to the office of

the Tahasildar, Mangaluru and to prepare a sketch identifying

the plaint 'A' schedule property. The said application was

resisted by the petitioner herein. The First Appellate Court by

impugned order dated 26.11.2021, allowed the IA.II and

being aggrieved by the same, the respondent therein has

presented the instant writ petition.

3. I have heard Sri Udaya Shankar Rai.P., learned

counsel appearing for the petitioner and Sri M. Sudhakar Pai,

learned counsel appearing for the respondent.

4. Sri Udaya Shankar Rai.P., learned counsel

appearing for the petitioner contended that since the suit is

filed for permanent injunction, the appointment of the Court

Commissioner to identify the property does not arise at all.

Therefore, he contended that finding recorded by the Court

below allowing IA.II is incorrect and therefore, he sought for

interference of this Court. Learned counsel appearing for the

petitioner also contended that an identical application was

filed by the respondent herein before the Trial Court,

however, he did not pressed the same and accordingly, prays

for interference in this Writ Petition.

5. Per contra, Sri M.Sudhakar, learned counsel

appearing for the respondent/caveator sought to justify the

impugned order and submitted that the First Appellate Court

after the considering the facts, recorded the finding that 'A'

schedule property is required to be identified to adjudicate

the matter effectively. Therefore, appointment of the Court

Commissioner is imperative. Accordingly, he sought for

dismissal of the writ petition.

6. I have heard the learned counsel appearing for

the parties. Undisputedly, the suit filed by the

plaintiff/respondent, seeking relief of permanent injunction

was dismissed by the Trial Court in OS No.770 of 2013 and

same was challenged before the First Appellate Court in RA

No.93 of 2017. The First Appellate Court after the

considering material on record and reasons set out by the

respondent herein seeking appointment of Court

Commissioner, had come to a conclusion that plaintiff did not

produce the sketch to establish actual extent of Item Nos. 1

and 2 and therefore, arrived at a conclusion that the

appointment of Court Commissioner is required to identify

the plaint 'A' schedule property. Having taken note of the

finding recorded by the First Appellate Court in the

impugned order and in view of law declared by this court in

the case of N.Swamygowda vs Ramegowda reported in

2010 KAR 897, I am of the view that the appointment of

Court Commissioner is within the discretionary domain of the

First Appellate Court and when there are conflicting versions

regarding the location of the suit schedule property, the

appointment of the Court Commissioner is impetrative and

though the learned counsel appearing for the petitioner

contended that the identical application was not pressed by

plaintiff before the Trial Court, however, same cannot be

regarded as the res-judicata on allowing the application by

the First Appellate Court because competency of the courts

are different. Therefore, I do not find acceptable grounds

urged in the writ petition to set aside the impugned order.

Accordingly, writ petition is dismissed and the impugned

order passed by the Principal Senior Civil Judge and CJM,

Mangaluru, D.K. in RA No.93 of 2017 on IA.II is confirmed.

Sd/-

JUDGE

SB