Karnataka High Court
Dr. B. R. Prakash vs C. G.Krishnamurthy on 2 April, 2024
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2024:KHC:13376
WP No. 6017 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO.6017 OF 2024 (GM-CPC)
BETWEEN:
DR. B.R. PRAKASH
S/O. LATE B.A. REVAPPA,
AGED ABOUT 74 YEARS,
NO. 297, 1ST CROSS,
BHCS LAYOUT,
UTTARAHALLI MAIN ROAD,
BENGALURU - 560 061.
...PETITIONER
(BY SRI. CHANDAN S. RAO, ADVOCATE)
AND:
C.G. KRISHNAMURTHY
SINCE DEAD BY HIS LRS.,
1. LEELABAI,
W/O. LATE C. G. KRISHNAMURTHY,
MAJOR,
Digitally signed by
VANDANA S 2. B.K. VENKATESH
Location: High S/O. C. G. KRISHNAMURTHY,
Court of Karnataka MAJOR,
3. B.K. GANESH
S/O. C. G. KRISHNAMURTHY,
MAJOR,
4. B.K. CHANDRAKALA
D/O. C.G. KRISHNAMURTHY,
MAJOR,
5. GAJAGOWRI
D/O. C.G. KRISHNAMURTHY,
MAJOR,
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WP No. 6017 of 2024
6. B.K. BHAGAWAN
S/O. C.G. KRISHNAMURTHY,
MAJOR,
7. B.K. THARA
D/O. C. G. KRISHNAMURTHY,
MAJOR,
8. B.K. AHALYA
D/O. C. G. KRISHNAMURTHY,
MAJOR,
R-1 TO R-8 ARE RESIDING AT NO.218,
L.B. SASTRY ROAD,
2ND MAIN, UTTARAHALLI,
SUBRAMANYAPURA POST,
BENGALURU-560 061.
9. M/S. BHARATH HOUSING
CO-OPERATIVE SOCIETY LTD.,
BY ITS SECRETARY/PRESIDENT,
NO.1, BHCS LAYOUT,
(BTM SCHEME),
BANNERAGHATTA ROAD,
BENGALURU-560073.
...RESPONDENTS
(BY SRI. SUNIL K.A., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
19.01.2024 PASSED OF COURT OF III ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (CCH 25) BENGALURU IN O.S.NO.6917/1999, THEREBY
ALLOWING IA NO.3 FILED BY LRS OF RESPONDENT NO.1 UNDER
ORDER XXVI RULE 9 READ WITH SECTION 151 CPC PRODUCED AS
(ANNEXURE-G) AND FURTHER BE PLEASED TO DISMISS THE SAID IA.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 6017 of 2024
ORDER
This petition by defendant No.1 in O.S.No.6917/1999 on the
file of III Additional City Civil and Sessions Judge, Bengaluru,
is directed against the impugned order dated 19.01.2024
whereby the application filed by the respondent-plaintiff
under Order XXVII Rule 9 of CPC for appointment of the
Court Commissioner was allowed by the trial court.
2. A perusal of the material on record would indicate that
respondent/plaintiff instituted the aforesaid suit against the
defendants for declaration, possession and mandatory injunction
and for other reliefs in relation to the suit schedule immovable
properties. The said suit having been contested by the
petitioner/defendant, by judgment and decree dated 07.07.1999,
the trial court dismissed the said suit as well as an application for
appointment of the Court Commissioner filed by the respondents.
However, in an appeal in RFA No.2231/2007 dated 05.12.2023,
filed by the respondents herein, this Court set-aside the said
judgment and decree and remitted the matter back to the
trial court for reconsideration afresh including passing orders
on I.A.No.3 for appointment of a Court Commissioner.
Subsequently, after remand, the trial court proceeded to pass the
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impugned order allowing I.A.No.3. Aggrieved by the same, the
petitioners are before this court by way of the present petition.
3. A perusal of the application, I.A.No.3 would indicate that the
trial court has summarily allowed the said application without
appreciating that in the aforesaid suit for declaration, possession,
mandatory injunction, it was permissible for the respondents to only
seek appointment of the Court Commissioner to conduct local
inspection only in relation to the plaint/suit schedule property and
not in relation to the reliefs sought for in the application.
4. Under these circumstances, though the trial court
has come to the correct conclusion that the Court Commissioner
deserves to be appointed to conduct local inspection,
the impugned order passed by the trial court deserves to be
modified by directing the appointment of the Court Commissioner
for limited purpose of conducting local inspection of the
plaint/suit schedule property and not in relation to the reliefs sought
for in I.A.No.3.
5. In the result, I pass the following:
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ORDER
(i) Petition is hereby partly allowed;
(ii) Impugned order dated 19.01.2024 in
O.S.No.6917/1999 on the file III Additional City Civil
and Sessions Judge, Bengaluru, is modified;
(iii) I.A.No.3 filed by the respondent/plaintiff stands
disposed off by directing the appointment of the Court
Commissioner for limited purpose of conducting local
inspection in respect of plaint/suit schedule property
only and not as per the reliefs sought for in the
I.A.No.3 filed by the respondent/plaintiff;
(iv) Liberty is reserved in favour of the parties to file their
respective memos of instructions before the Court
Commissioner;
(v) Liberty is reserved to the parties to file
objections to the court commissioner's report and
examine/cross-examine the Court Commissioner,
if so desire; and
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(vi) All rival contentions on all aspects of the matter
including the report of Court Commissioner are kept
open and no opinion is expressed on the same.
SD/-
JUDGE
AV
