Karnataka High Court
Ferozkhan vs Sharfuddin And Anr on 7 June, 2024
-1-
NC: 2024:KHC-K:3709
WP No. 201274 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
WRIT PETITION NO.201274 OF 2024 (GM-CPC)
BETWEEN:
MR. FEROZKHAN
S/O KHAJA KHAN,
AGED ABOUT 51 YEARS,
OCC: AGRICULTURE AND BUSINESS,
RESIDING NEAR JAMIYA MASJID,
WADI-585 225,
TALUKA: CHITTAPUR,
DISTRICT: KALABURAGI.
...PETITIONER
(BY SRI. ABDUL MUQHTADIR, ADVOCATE)
AND:
Digitally
signed by 1. MR. SHARFUDDIN
RENUKA
S/O HAJI MOHD. SHERALLI,
Location:
High Court AGED ABOUT 62 YEARS,
Of Karnataka OCC: AGRICULTURE,
R/AT H.NO.5-993/20/130,
BESIDE FAIZAL MANZIL, UMAR COLONY,
OPP. SUNRISE PUBLIC SCHOOL STREET,
AZADPUR ROAD, KALABURAGI-585 104.
2. MR. AEJAZ ALI S/O WAHED ALI,
AGED ABOUT 56 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/AT H.NO.6-408/72/A,
-2-
NC: 2024:KHC-K:3709
WP No. 201274 of 2024
RING ROAD, QAMAR COLONY,
KALABURAGI-585 104.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI TO QUASH THE ORDER ON
I.A. NO.9 DATED 15-12-2023 PASSED IN O.S. NO.13/2022 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHITTAPUR
VIDE ANNEXURE-F AND ALLOW THE I.A. NO.9 DATED
23-08-2023 FILED BY THE PETITIONER VIDE ANNEXURE-D BY
APPOINTING THE ADLR, CHITTAPUR AS THE COURT
COMMISSIONER.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Defendant No.2 in O.S. No.13/2022 on the file of
Senior Civil Judge, Chittapur has filed this petition
challenging an order dated 15.12.2023 passed therein by
which, an application filed by him under Order XXVI Rule 9
of CPC was rejected.
2.(a) The suit in O.S. No.13/2022 was filed for a
declaration that the plaintiff is the owner of the suit
property and to restrain the defendants from interfering
with his possession. The plaintiff claimed that he had
purchased the suit property in terms of a sale deed dated
NC: 2024:KHC-K:3709
29.03.2001. He claimed that defendant Nos.1 and 2 being
unconcerned with the suit property were interfering with
his possession and therefore, sought for the reliefs
mentioned above.
(b) Defendant No.2 contested the suit and claimed
that he had nothing to do with the suit property and that
he had not interfered with the possession of the plaintiff in
the suit property.
(c) Based on these contentions, the suit was set
down for trial.
(d) The plaintiff was examined as PW.1. However,
his cross-examination was taken as nil, as the defendants
did not cross-examine him. The plaintiff examined a
witness as PW.2 and he too was not cross-examined.
Defendant No.2 did not lead any evidence and therefore,
the case was posted for arguments.
(e) At that stage, defendant No.2 filed an
application under Order XXVI Rule 9 of CPC to appoint a
NC: 2024:KHC-K:3709
Commissioner to determine the interference alleged by the
plaintiff with his possession in the suit property. This
application was opposed by the plaintiff on the ground that
a Commissioner cannot be appointed to collect evidence,
more particularly, when the defendants did not cross-
examine the plaintiff's witness and did not adduce any
evidence.
(f) The Trial Court, after considering the assertions
made by defendant No.2 as well as the objections filed by
the plaintiff, rejected the application in terms of the order
dated 15.12.2023 on the ground that defendant No.2
neither cross-examined the plaintiff and his witness, nor
did he lead any evidence in support of his contentions. It
held that, the Commissioner cannot be appointed to report
on the alleged interference by defendant No.2, as the
alleged interference was on the date of the suit and not as
on the date of filing the application.
3. Being aggrieved by the said order, defendant
No.2 is before this Court.
NC: 2024:KHC-K:3709
4. Learned counsel for the petitioner/defendant
No.2 submits that the Commissioner can be appointed to
collect evidence and that there is no bar in doing so. He
relied upon a judgment of Co-ordinate Bench of this Court
in the case of Shadaksharappa vs. Kumari Vijayalaxmi
and others (W.P.No.201274/2022, D.D.
24.01.2023). He contended that the application under
Order XXVI Rule 9 of CPC is not stage centric, but case
centric. Therefore, the Trial Court committed an error in
rejecting the application. He submitted that defendant
No.2 has now entered into the witness box and has
adduced evidence and therefore, the ground on which the
Trial Court had rejected the application does not exist.
5. I have considered the submissions made by the
learned counsel for the petitioner.
6. The plaintiff had filed suit for declaration of his
title and for consequential injunction. The suit was based
on a sale deed executed in his favour by the erstwhile
owner. Defendant No.2 filed written statement contending
NC: 2024:KHC-K:3709
that he did not interfere with the possession of the plaintiff
in the suit property. He contended that he was no way
concerned with the suit property. Therefore, the question
of defendant No.2 filing an application to appoint a
commissioner to report about the alleged interference
does not arise. The Trial Court has considered the
application in the right spirit and has rightly rejected the
application. There is no error committed by the Trial Court
warranting interference in this petition.
Hence, the petition is dismissed.
Sd/-
JUDGE
LG
