Karnataka High Court
Tippusultan S/O Badasha Sattikar ... vs Hanamant And Ors on 5 January, 2024
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WP No. 203193 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
WRIT PETITION NO. 203193 OF 2022 (GM-CPC)
BETWEEN:
1. TIPPUSULTAN S/O BADASHA SATTIKAR,
DECEASED BY HIS LEGAL HEIRS,
1(A) SHAHAPARI
W/O TIPPUSULTAN SATTIKAR,
AGE: 59 YEARS,
OCC: HOUSEHOLD WORK,
R/O NEAR KHAJA AMEEN DARGA,
TQ AND DIST: VIJAYAPURA-586101.
1(B) AMIN S/O TIPPUSULTAN SATTIKAR,
AGE: 44 YEARS,
OCC: PRIVATE SERVICE,
R/O NEAR KHAJA AMEEN DARGA,
Digitally signed
by RAMESH
MATHAPATI
TQ AND DIST: VIJAYPURA-586101.
Location: HIGH
COURT OF
KARNATAKA
...PETITIONERS
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)
AND:
1. HANAMANT
S/O SAVALIGEPPA GACHCHINAKATTI,
AGE: 72 YEARS,
OCC: PENSIONER,
R/O SHAHUNAGAR, MIRDE GALLI VIJAYAPURA,
TQ AND DIST: VIJAYAPURA-585101.
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WP No. 203193 of 2022
2. NISAR
S/O TIPPUSULTAN SATTIKAR,
AGE: 41 YEARS,
OCC: PRIVATE SERVICES,
R/O NEAR KHAJA AMEEN DARGA,
TQ AND DIST: VIJAYAPURA-586101.
3. SEEMA
D/O TIPPUSULTAN SATTIKAR,
AGE: 39 YEARS,
OCC:HOUSEHOLD WORK,
R/O NEAR KHAJA AMEENDARGA
TQ AND DIST: VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI. YASHAS S. DIKSHIT, ADVOCATE FOR R1;
R2 & R3 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI AND TO QUASH THE IMPUGNED ORDER ON
IA NO. 18 DATED 09.11.2022 PASSED IN OS NO. 172/2013 ON
THE FILE OF THE COURT OF THE PRINCIPAL CIVIL
JUDGE VIJAYAPURA AT VIJAYAPURA VIDE PRODUCED AT
ANNEXURE- D, AND ISSUE ANY OTHER WRIT OR DIRECTION
TO MEET THE ENDS OF JUSTICE UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE. IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS PETITION, COMING ON FOR HEARING-IA, THIS
DAY, DR.CHILLAKUR SUMALATHA, J., MADE THE
FOLLOWING:
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WP No. 203193 of 2022
ORDER
Heard Sri.Bapugouda Siddappa, learned counsel for
the petitioners as well as Sri.Yashas Dixit, learned counsel
for the respondent No.1. Despite of service of notice, none
appears for respondent Nos.2 and 3.
2. This writ petition is directed against the order
dated 09.11.2022 that was rendered by the Court of
Principal Civil Judge, Vijayapura in IA No.XVIII in
O.S.No.172/2013 that stood pending on the file of the said
Court.
3. The flow of events if narrated point-wise as per
the material available on record are as under;
(a) The first respondent herein who is the plaintiff to
the suit filed a suit for declaration, permanent as
well as mandatory injunction against the deceased
defendant.
(b) Summons was served upon the deceased
defendant and he entered into appearance.
(c) On filing of written statement, issues were framed.
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(d) Evidence was recorded and both sides adduced
their evidence.
(e) At that stage, the defendant died.
(f) Notices were send to the legal representatives of
the deceased defendant i.e., the writ petitioners,
herein.
(g) Having received the notices, they remained absent
and therefore they were set ex-parte.
(h) Subsequently, they moved an application vide
IA.No.17 under Order 9 Rule 7 of CPC, to set aside
the ex-parte order. The same was allowed.
4. The writ petitioners then moved an application
vide IA.No.18 under Order 26 Rule 9 of CPC, seeking to
appoint the Assistant Director of Land Records, Vijayapura
as Court Commissioner to inspect the disputed property.
The said application was dismissed and aggrieved by the
same the present writ petition is filed.
5. Contending that the trial Court ought to have
given an opportunity to the writ petitioners to establish
their stand through the report of the Commissioner,
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learned counsel for the writ petitioners states that the writ
petitioners and the plaintiff to the suit are adjacent land
owners and there is boundary dispute and to establish the
rights over the disputed property, the writ petitioners are
at liability to get the land surveyed through the
Commissioner. Learned counsel states that no prejudice
would be caused to the plaintiff to the suit in case the
Commissioner files his report and thus the dismissal of
application is unjustifiable. To substantiate his submission,
learned counsel for the writ petitioners relied upon the
decision of this Court in W.P.No.66192/2012 which is a
case between Bhimappa and Shrikant and Others
decided on 20.02.2014.
6. A perusal of the said order goes to show that
even before the commencement of trial proceedings, the
appointment of Commissioner was sought for and the
same was allowed by the trial Court and the said order
was challenged. The Court expressing an opinion that to
cut short the litigation and to reduce recording evidence,
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the trial Court in its wisdom felt that appointment of a
Commissioner even before the commencement of the trial
Court can be done and the said approach is not illegal.
The other decision relied upon is one that is rendered
by this Court in W.P.No.53514/2016 between
Dr.K.T.Channeshappa Vs. Sri. Subhash Krishnappa,
decided on 20.03.2019, where the Court expressing its
opinion that injustice cannot be done because of
technicalities, considered desirable to appoint a Court
Commissioner for inspection of the suit property.
7. The submission made by Sri.Yashas Dixit,
learned counsel is that only to drag on the proceedings,
IA.No.18 was pressed into service. Learned counsel also
contends that three witnesses were examined by the
deceased defendant on his side and thereafter the
evidence was closed and the matter was posted for
arguments. Learned counsel also states that in case there
was requirement for appointment of a Commissioner, such
request ought to have been made at the earliest but not at
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an advance stage. Learned counsel further submits that
when the matter is posted for judgment, nothing has to be
done by the Court except to pronounce the judgment,
relied upon the decision of this Court in a case between
Rabiya Bi Kassim M. Vs. The Country Wide Consumer
reported in ILR 2004 KAR 2215.
8. It is not in dispute that the deceased defendant
who is the father of writ petitioners had entered
appearance, filed his written statement, cross-examined
the witnesses of the plaintiff and adduced his evidence by
producing three witnesses. Also it is not in dispute that on
recording the entire evidence, the evidence was closed
and at that stage the defendant died. Further it is borne
by record that despite of service of summons, the writ
petitioners who are the legal representatives of the
deceased defendant did not take care to attend the Court
and pursue the matter. However, thereafter they moved
an application to set aside the ex-parte order and the
same was allowed. The suit of the year 2013 is traveling
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without end till 2024. A copy of the proceeding sheet
which is on record goes to show that at every stage, the
trial Court was liberal in granting adjournments to both
parties. The writ petitioners have not made out any
concrete ground for forwarding the application i.e.,
IA.No.18 at a highly belated stage. If the parties to the
suits are permitted to file applications for re-opening the
suits and for adducing further evidence even at the stage
of arguments that too without any justifiable cause, civil
suits will never end in judgments. Rendering of judgment
in a civil suit does not normally end the litigation.
Thereafter, the crucial part of execution of decree should
also take place. If the suits travel for more than a decade
at the stage of trial itself, the plight of the person who
seeks relief can well be imagined.
9. In the case on hand, this Court does not find
any ground more so justifiable ground for interfering with
the stand taken by the trial Court. Only because the writ
petitioners have come on record as legal representatives
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of the deceased defendant, they cannot be permitted to
proceed with filing application for re-opening the matter.
Having said this, this Court concludes the writ petition
holding that the same lack merits.
10. Resultantly the writ petition stands dismissed
without costs.
Sd/-
JUDGE
MSR
