KUMARI BRINDA D/O. PRASANNA SHETTI vs. GAJANJANA S/O. BASAPPA NEELAKARI

1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 10th DAY OF OCTOBER, 2012 BEFORE THE HON’BLE MR.JUSTICE RAM MOHAN REDDY WRIT PETITION No.69871/2012 (GM-CPC) BETWEEN: Kumari Brinda, D/o Prasanna Shetty, Age: 13 years, Occ.: student, Since minor represented by Her guardian natural mother Bindu w/o Prasanna Shetty, Age: 40 years, Occ.: Household, R/o near old Income Tax Office, Vidyanagar, Hubli. - Petitioner (By Sri S.K. Kayakmath, Advocate) AND: Sri Gajanana, S/o Basappa Neelakari, Age: 49 years, Occ.: Chartered Accountant, R/o Swimming Pool Complex, P.B. Road, Hubli. - Respondent THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET-ASIDE ORDER DATED 10.08.2012

2 PASSED ON I.A. NO.7 FILED U/O 26 RULE 9 R/W SEC. 151 OF CPC IN O.S. NO.538/2009 ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR. DN.) AND JMFC, HUBLI, VIDE ANNEXURE-D AND ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY THE COURT MADE THE FOLLOWING: ORDER Plaintiff in O.S.No.538/2009 on the file of the Prl. Civil Judge and JMFC, Hubli, aggrieved by the rejection of I.A.No.7 under Order XXVI Rule 9 of CPC to appoint a Court Commissioner to make local inspection and measure the suit property with reference to the C.T.S. combined map and clarify the measurements of suit property, by order dated 10.08.2012, has presented this petition. 2. There is no dispute that the trial in the suit is concluded, whence the parties have adduced evidence both oral and documentary and at the stage of final arguments, the plaintiff filed I.A.No.7 under Order XXVI Rule 9 of CPC to appoint a Court Commissioner to make

3 local investigation to measure the suit property with reference to the C.T.S. combined map and also clarify the measurements of the suit property. This application when not opposed by the defendant, had infact extended no objection to allow the application, the trial court having regard to the pleadings of the parties and more appropriately the fact that the parties had let in evidence both oral and documentary which is sufficient to adjudicate the matter in controversy, accordingly by the order impugned, dismissed the application. 3. It is well settled that the need to resort to Order XXVI Rule 9 of CPC ought to be availed by the Court for the purpose of elucidating the details which in its opinion can neither be had nor produced by the parties in their evidence, both oral and documentary. This is the law laid down by this Court in ILR 2002 KAR 3599 in the case of Annappa Mestha vs. Mutayya Achari.

4 4. In the light of the aforesaid decision and applying the same to the facts of this case and more properly the finding recorded by the trial court, the order impugned does not call for interference. Moreover neither hardship nor inconvenience is caused to the plaintiff. Petition without merit is rejected. SD/- JUDGE mkc