Karnataka High Court
Sri. Jagadeesha Bairy vs Smt. Sridevi on 8 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2024:KHC:5504
WP No. 3300 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 3300 OF 2024 (GM-CPC)
BETWEEN:
1. SRI. JAGADEESHA BAIRY
AGED ABOUT 49 YEARS
S/O LATE SUBRAYA BAIRY
2. SRI RADHAKRISHNA BAIRY
AGED ABOUT 46 YEARS
S/O LATE SUBRAYA BAIRY
BOTH ARE RESIDING AT
BTR ROAD, VADERA HOBLI
KUNDAPURA - 576 201
Digitally
UDUPI DISTRICT
signed by ...PETITIONERS
ANAND N
Location: (BY SRI. CHANDRANATH ARIGA K., ADVOCATE)
HIGH
COURT OF
KARNATAKA
AND:
1. SMT. SRIDEVI
AGED ABOUT 60 YEARS
D/O LATE KRISHNA BEARY
2. SMT LALITHA
AGED ABOUT 58 YEARS
D/O LATE KRISHNA BEARY
-2-
NC: 2024:KHC:5504
WP No. 3300 of 2024
BOTH ARE RESIDING AT
BIVIES ROAD
VADERA HOBLI
KUNDAPURA - 576 201
UDUPI DISTRICT
...RESPONDENTS
(BY SRI. K.PRASANNA SHETTY, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DTD 06.01.2024 PASSED ON IA NO.9 IN
O.S.NO.36/2009 ON THE FILE OF THE PRL. CIVIL JUDGE
AND JMFC, KUNDAPURA ANNEXURE-K; REJECT IA NO.9
O.S.NO.36/2009 ON THE FILE OF THE PRL. CIVIL JUDGE
AND JMFC, KUNDAPURA ANNEXURE-H.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by the defendants in O.S.No.36/2009 is
directed against the impugned order dated 06.01.2024
passed by the Principal Civil Judge and JMFC, Kundapura
[for short, 'the trial Court'] whereby, the application
[I.A.No.IX] filed by the respondents-plaintiffs under Order
XXVI Rule 9 read with Section 75 and 151 of the Code of
Civil Procedure, 1908 [for short, 'CPC'] seeking
appointment of a Court Commissioner, was allowed by the
trial Court.
NC: 2024:KHC:5504
2. Heard the learned counsels for the parties and
perused the material on record.
3. The material on record discloses that the
respondents-plaintiffs instituted the aforesaid suit against
the petitioners-defendants for declaration, permanent
injunction and other reliefs in relation to the suit schedule
immovable property. During the pendency of the said suit,
the respondents having filed the instant application
[I.A.No.IX] for appointment of a Court Commissioner, the
same was opposed by the petitioners-defendants on
several grounds, including contending that a Court
Commissioner was already appointed in the earlier round of
litigation in E.P.No.30/2005 and also O.S.No.873/1987
between the parties. It was therefore contended that since
a Commissioner had already been appointed in the
previous proceedings, the question of appointing a
fresh/new Commissioner would not arise in the facts and
circumstances of the case. After hearing the parties, the
trial Court proceeded to allow the application by passing
NC: 2024:KHC:5504
the impugned order which is assailed in the present
petition.
4. A perusal of the impugned order will indicate
that the trial Court has taken into account the specific
contention of the respondents that earlier judgment and
decree passed in O.S.No.873/1987 had been sought to be
declared as null and void by the respondents in the present
suit and consequently, no prejudice would be caused to the
petitioners if fresh/new Commissioner was appointed
particularly in the light of the specific contention that the
respondents were unaware about the earlier proceedings.
5. In view of the aforesaid circumstances, I am of
the view that the impugned order passed by the trial Court
does not suffer from any illegality or infirmity warranting
interference of this Court in exercise of its powers under
Article 227 of the Constitution of India, as held by the Apex
Court in the case of Radhey Shyam Vs. Chhabi Nath
reported in (2015) 5 SCC 423.
6. In the result, I proceed to pass the following:
NC: 2024:KHC:5504
ORDER
a) The petition is hereby dismissed.
b) The impugned order dated 06.01.2024 in
O.S.No.36/2009 on the file of the Principal
Civil Judge and JMFC, Kundapura is
hereby confirmed.
c) Liberty is also reserved to the parties to
file memos of instructions before the
Court Commissioner and also objections
to his report, if any, and also
examine/cross-examine him if they so
desire.
d) All rival contentions on all aspects of the
matter are kept open and no opinion is
expressed on the same.
Sd/-
JUDGE
RB
