Karnataka High Court
Mangala W/O Masti Gonda vs Nagappa S /O Timmappa Gonda on 28 June, 2024
-1-
NC: 2024:KHC-D:8861
WP No. 101888 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.101888 OF 2024 (GM-CPC)
BETWEEN:
1. MANGALA W/O. MASTI GONDA,
AGE: 65 YEARS, OCC: HOUSEHOLD,
2. SOMAYYA S/O. MASTI GONDA,
AGE: 57 YEARS, OCC: AGRICULTURE,
BOTH ARE R/O. KUNTAVANI VILLAGE,
HADAVALLI POST, BHATKAL TALUKA-581354.
...PETITIONERS
(BY SRI. R.H. ANGADI, ADVOCATE)
AND:
NAGAPPA S/O. TIMMAPPA GONDA,
AGE: 68 YEARS, OCC: AGRICULTURE,
Digitally signed
by ASHPAK R/O. KALTUBAMNE, KUNTAVANI VILLAGE,
KASHIMSA
MALAGALADINNI
Location: HIGH
HADAVALLI POST,
COURT OF
KARNATAKA
DHARWAD
BHATKAL TALUKA N.K-5813534.
BENCH
Date: 2024.07.05 ...RESPONDENT
12:38:36 +0530
(BY SRI. PRAVEEN P. TARIKAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE AN ORDER IN THE
NATURE OF WRIT OF CERTIORARI OR QUASH THE IMPUGNED ORDER
ON I.A.NO.III, FILED UNDER ORDER XXVI RULE 9 R/W 151 OF C.P.C.
IN O.S.NO.58/2022, DATED 30/01/2024, ON THE FILE OF
ADDITIONAL CIVIL JUDGE, BHATKAL, VIDE ANNEXURE-E AND
CONSEQUENTLY REJECT THE APPLICATION FILED BY THE PLAINTIFF
UNDER ORDER XXVI RULE 9 R/W 151 OF C.P.C., VIDE ANNEXURE-C,
BY ALLOWING THIS PETITION TO MEET THE ENDS OF JUSTICE.
-2-
NC: 2024:KHC-D:8861
WP No. 101888 of 2024
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the defendants
assailing the order passed by the learned Judge on an
application filed under Order XXVI Rule 9 R/w Sec.151 of
The Code of Civil Procedure seeking appointment of Court
Commissioner. The said order is under challenge.
2. The respondent/plaintiff is seeking the relief of
declaration that he has got easementary right in the
alleged suit path. It is in this background, plaintiff has filed
an application to appoint the Court Commissioner
comprising of an Advocate and a surveyor to make a local
inspection and submit a report in that regard. When a
relief of declaration of easementary right is claimed, any
amount of oral and documentary evidence sometimes may
not come to the aid of Court in effectively adjudicating the
easementary right.
3. Because of its peculiar nature, lis can be
resolved by way of spot inspection. Bearing in mind that
NC: 2024:KHC-D:8861
the plaintiff is asserting easementary rights, the Court felt
that, the local inspection is inevitable. The petitioner's
contention that it amounts to collection of evidence is
totally misconceived. The co-ordinate Bench of this Court
in a reported Judgment in W.P.No.201274/2022 (GM-
CPC) [Sri. Shadaksharappa S/o. Veranna Vs. Kumari
Vijayalaxmi D/o. Pampanna and others] at paragraph
Nos.21, 22 and 23 has held as under:
"21. Having examined the provisions referred
to above and given the fact that Order XXVI of the
Code of Civil Procedure is often invoked in the trial
Court, this court is of the view, broadly speaking in
the following cases, the appointment of an
appropriate Commissioner as provided under Order
XXVI of the Code is desirable.
(i) The dispute relating to the easement of
air, light, pathway, road, watercourse, etc.,
(ii) The dispute relating to the boundary,
encroachment;
(iii) The dispute relating to forgery;
NC: 2024:KHC-D:8861
(iv) The dispute relating to the existence or
otherwise of a stream, pond, drainage, watercourse,
road, pathway, pollution, or nuisance.
22. The examples given above are not
exhaustive but merely illustrative. The guidelines in
this order should not be construed as having
exhaustively listed the cases in which the
Commissioner can be appointed. Nor the observations
should be construed as having diluted or expanded
the discretion vested with the trial court in such
matters.
23. This court is also conscious of the fact that
in quite a large number of cases, the Commissioners
are appointed by the trial courts. By the time the
report is submitted to the court, quite often, if not all
the time, a lot of time is spent awaiting the report. To
save the precious time of the court and to streamline
the procedure, as far as practicable, the following
procedures may be adopted;-
a) The Court may fix the date and time for local
inspection, directing the parties to be present
at the disputed property, to avoid the process
of issuance of notice to the parties by the
Court Commissioner.
NC: 2024:KHC-D:8861
b) The court shall also fix the time frame for the
parties to file a memo of instructions and shall
scrutinize the instructions submitted and if
need be reframe the instructions to focus the
attention on the matters in dispute.
c) If the court feels that the Commissioner is
required to submit a report on a particular
matter or a question, the court shall also
frame the specific question to be answered by
the Commissioner.
d) It is desirable to specify in the order whether
or not the parties are entitled to submit an
additional memo of instructions to the
Commissioner at the time of local inspection.
e) The time frame be fixed for submitting the
report to the Court and while fixing the time,
due regard must be had to the nature of the
commission work and the urgency involved in
the matter;
f) If the survey of any land is ordered to be
conducted by a head of the survey department
or any other designated officer, the court
having regard to the nature of the work may
also specify in the order, whether the
Commissioner appointed is authorized to
delegate the work to some other person in the
NC: 2024:KHC-D:8861
same department.
g) Wherever practicable, the court shall direct the
court Commissioner, to furnish a number of
true copies of the report to the counsel
representing the parties to the suit, while
submitting the report to the court.
h) Time schedule should also be fixed for filing
objections to the report of the Commissioner if
any.
i) In all cases, where the report of the
Commissioner is awaited, the court may if
practicable proceed with the trial or other
stages of the proceeding."
4. In the light of the law laid down by the co-
ordinate Bench of this Court, in the above reported
Judgment, the order under challenge does not warrant
interference.
The writ petition is devoid of merits. Accordingly, the
same is dismissed.
Sd/-
JUDGE
AM,SVH
