Karnataka High Court

Siddappa S/O Yamanappa Chigaraddi vs Yamanappa S/O Hanamappa Shashannavar on 25 February, 2025

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

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                                                                    NC: 2025:KHC-D:3818
                                                                 WP No. 100703 of 2025




                                       IN THE HIGH COURT OF KARNATAKA,
                                               DHARWAD BENCH                         R
                                  DATED THIS THE 25TH DAY OF FEBRUARY, 2025
                                                   BEFORE
                                  THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

                                  WRIT PETITION NO.100703 OF 2025 (GM-CPC)
                          BETWEEN:

                          1.   SIDDAPPA S/O YAMANAPPA CHIGARADDI
                               AGE. 65 YEARS, OCC. AGRICULTURE,
                               R/O. LAXANATTI, TQ. MUDHOL,
                               DIST. BAGALKOT-587311.

                          2.   LOKANNA S/O YAMANAPPA CHIGARADDI
                               AGE. 63 YEARS, OCC. AGRICULTURE,
                               R/O. LAXANATTI, TQ. MUDHOL,
                               DIST. BAGALKOT- 587311.
                               SENIOR CITIZEN BENEFIT NOT CLAIMED
                                                                          ...PETITIONERS
                          (BY SRI GIRISH A. YADAWAD, ADVOCATE)

                          AND:

                          YAMANAPPA S/O HANAMAPPA SHASHANNAVAR
                          AGE. 47 YEARS, OCC. AGRICULTURE,
                          R/O. OPP. AXAY PETROL PUMP,
ASHPAK
                          BAGALKOT BELAGAVI ROAD,
KASHIMSA
MALAGALADINNI             LAXANATTI, TQ. MUDHOL,
Digitally signed by
                          DIST. BAGALKOT-587311.
                                                                          ...RESPONDENT
ASHPAK KASHIMSA
MALAGALADINNI
Location: High Court of
Karnataka, Dharwad
Bench
Date: 2025.02.28
12:41:34 +0530            (NOTICE TO RESPONDENT IS DISPENSED WITH
                          VIDE ORDER 25.02.2025)

                                 THIS WP IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF
                          INDIA, 1950, PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH
                          THE IMPUGNED ORDER DATED 22.07.2024 PASSED BY THE ADDL.
                          CIVIL JUDGE AND JMFC, MUDHOL IN OS NO.154/2016 VIDE
                          ANNEXURE-C, IN THE INTEREST OF JUSTICE AND EQUITY.
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                                            NC: 2025:KHC-D:3818
                                        WP No. 100703 of 2025




       THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:


                         ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

1. Notice to respondent is dispensed with in view of the

proposed order to be passed.

2. The petitioners are before this Court seeking for the

following reliefs:

"Issue a writ of certiorari to quash the impugned order dated 22.07.2024 passed by the Addl. Civil Judge and JMFC, Mudhol in OS No.154/2016 vide Annexure-C, in the interest of justice and equity."

3. The petitioners had filed a suit in O.S.No.154 of 2016

before the Principal Civil Judge and JMFC., Mudhol for

possession against the defendant therein on the

ground that the defendant had encroached upon a

portion of the property belonging to the petitioners. In

the said suit, written statement having been filed,

issues were framed, evidence was led by both the

parties, the witness cross-examined the parties and

the matter was posted for judgement. At that stage,

NC: 2025:KHC-D:3818

on 22.07.2024, the trial Court passed the following

order:

"While perusing the records of the case and preparing for the judgment this court finds necessary to appoint court commissioner for local investigation of suit properties for the purpose of better appreciation of evidence and effective adjudication of the dispute completely."

4. Subsequent thereto, the PDO of Laxanatti village

Panchayat is appointed as a Court Commissioner to

submit the report. The report according to the

petitioner has still not been filed. Challenging the order

appointing the Court Commissioner, the petitioner is

before this Court seeking for aforesaid reliefs.

5. The submission of Sri Girish A.Yadwad., learned

counsel appearing for the petitioners is that once the

matter had been posted for judgement, the question of

appointment of Court Commissioner, would not arise

that would amount to reopening of the stage of the

case. In this regard, he relies upon the decision of of

this Court in the case of Rabiya Bi Kassim M v.

Country Wide Consumer Financial Service Lltd.,

reported in AIR OnLine 2004 KAR 2, more

NC: 2025:KHC-D:3818

particularly para 9 thereof, which is reproduced

hereunder for easy reference.

"9. On consideration, we are of the opinion that once the matter has been finally heard and posted for judgment, as held by the Supreme Court in Arjun Singh's case (supra) nothing is required to be done by the Court except to pronounce the judgment, and therefore the decision in Laxminarayan Enterprises case is not helpful. Admittedly, Clause (4) of Order 18 Rule 2, of CPC has been deleted and therefore the respondent- plaintiff cannot take advantage of Laxmin Arayan's case in the facts of the given case. Even if we assume it for the sake of argument without accepting, in view of the amendment in CPC, as we find, the law relating to procedure in suits and civil proceedings are governed by CPC. The CPC has been amended from time to time. Recently also, in order to cut short the delays at various levels in disposal of civil cases, CPC was amended by the Amendment Act of 1999 with effect from 1.7,2002. In the facts of the given case, sufficient opportunity was given to the plaintiff to complete his evidence, but he has not availed the opportunity at appropriate time and thereafter his evidence was closed. The case was fixed for defendant's evidence and ultimately the case was heard and reserved for judgment on 20.6.2001. In our view, if the matter is reserved for pronouncement of judgment, such an application is not maintainable as otherwise it will defeat the very object of amendment in speedy disposal of the cases."

6. His submission is that the object of amendment to the

CPC in the year 1999 is to speed up the proceedings.

Thus, once a case is reserved for pronouncement of

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judgement, an application for recall of a stage would

not be maintainable.

7. Heard Sri Girish A.Yadawad., learned counsel

appearing for the petitioners and perused the papers.

8. Firstly, the decision in Rabiya Bi Kassim M's case

(supra), in my considered opinion, would not be

applicable since that was a case when the matter was

posted for judgement, the plaintiffs had filed an

application for recalling of the stage to lead evidence.

9. This is a case where the Court was of the opinion that

a Commissioner was required to be appointed to

carryout local inspection of the properties and submit a

report for better appreciation of the evidence and

effective adjudication on the dispute. The Order XXVI

rule 9 of Code of Civil Procedure (for short 'CPC') is

reproduced hereunder for easy reference:

"9. Commissions to make local investigations.--In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profit or damages or annual net profits, the Court may issue a commission to

NC: 2025:KHC-D:3818

such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State government has made rules as to the persons to whom such commission shall issued, the Court shall be bound by such rules."

10. A perusal of a reading of the said provision would

indicate that in any suit where the Court determines a

local investigation to be requisite, then such a local

Commissioner could be appointed by the Court

appointing a Commissioner. The fact that the words

used are "the Court deems a local investigation to be

requisite or proper", gives ample discretion to the

Court to decide whether a Court Commissioner is to be

appointed or not. This power of the Court is not

restricted by any application to be filed by any of the

parties but, it is sufficient if the Court deems fit that

would mean that even suo-moto power under Rule (9)