A. Papanna vs D.M. Patel

Budihal R.B., J.—1. This writ petition is filed by the defendant in O.S. No. 1024/2007 on the file of the I Additional Senior Civil Judge and CJM, Mysuru challenging the order dated 5.6.2015 passed on I.A. No. 16 filed under Order 26 Rule 9 of CPC requesting the Court to appoint Court Commissioner for the purpose of identification of the suit schedule property. The application was supported by the affidavit of the petitioner-defendant wherein it is stated that aggrieved by the said judgment and decree passed by the trial Court, the defendant preferred R.A. No. 143/2011 on the file of the 5th Additional District Judge, Mysruru and the same came to be allowed on 12.04.2012 and the matter was remanded for fresh disposal after framing additional issues and after giving opportunity of hearing to both parties. It is the contention of the petitioner that there were two agreements of sale dated 28.7.2004 and 16.8.2004 and hence, requested the Court to appoint Commissioner to identify the property under the said agreements of sale. The application was filed and the same was objected by the respondent-plaintiff by filing objection to the said application. After considering the same, ultimately, the trial Court rejected I.A. No. 16 by passing the impugned order.

Heard learned counsel appearing for the petitioner-defendant so also the arguments of learned counsel for respondent-plaintiff.

Learned counsel for the petitioner made submission that looking to the judgment and decree passed by the trial Court, it is clear and prima facie goes to show that the suit schedule property involved in both agreements are one and the same property. It is his contention that because of this reason only to know that whether there are two independent properties as contended by the respondent-plaintiff in the two suits or it is only one property, the said application was filed. But the same was rejected by the trial Court. Hence, rejection of the application is illegal and it is not sustainable in law. The learned counsel further made submission that if there is report from the Court Commissioner, certainly, it would help the trial Court to dispose of the matter more effectively. In support of his contention, learned counsel for the petitioner-defendant has relied upon the decision of this Court in case of VENKATESHAPPA Vs. DODDAMUNIVENKATAMMA AND ANOTHER reported in , 2015 (4) KCCR 3379 and submitted to allow the writ petition and to set aside the order of the trial Court by allowing the application for appointment of the Court Commissioner.

Per contra, learned counsel for the respondent-plaintiff made submission that looking to the pleadings of the parties before the trial Court in the two suits which were filed independently and separately basing on the respective sale agreements, there is no dispute with regard to identity of the property. In one suit, the appeal is already pending before this Court. It is further contended that the appellate court remanded the present suit to the trial Court to dispose of the same afresh after the evidence was led. When the plaintiffs counsel completed the arguments and when it was set down for defendant''s argument, at that juncture, the said application was filed by the defendant. The agreements of sale were of the year 2004. The suits were filed in the year 2007. Now we are in the year 2016. Therefore, looking to the pendency of the suit before the Court, the Commissioner''s appointment cannot be entertained. The trial Court has rightly appreciated the factual aspect of the matter and rejected the application. It is also his contention that if at all, the properties under two agreements are one and the same, the same is to be established by producing evidence before the Court and to prove the said issue, the appointment of Court Commissioner will not be helpful. In support of his contention, learned counsel for the respondent-plaintiff has relied upon the decision of this Court dated 25.3.2015 passed in W.P. Nos. 39844/2011 and 57092/2014 and another decision dated 16.7.2015 passed in W.P. Nos. 43769-770/2014 connected with W.P. No. 47122/2014.

I have perused the averments made in the writ petition and also the order dated 5.6.2015 passed by the trial Court on I.A. No. 16 for appointment of the Court Commissioner. By the said application, the defendant sought for appointment of Court Commissioner for establishing identity of the suit schedule property and to submit report in the matter. Admittedly, according to both parties, out of two suits filed basing upon the two agreements of sale, one appeal is already pending before this Court and another suit was remanded by the appellate Court. Out of that, the present application was filed. Though it is the contention of the petitioner herein that the property involved in both suits are one and the same, this aspect has to be established by the defendant by adducing evidence. As it is rightly submitted by the respondent plaintiff that looking to the nature of the suit for specific performance of agreement of sale filed by the petitioner-defendant, Commissioner''s report will not help to any of the parties. The parties have to produce any other material to establish the contention they have raised in the suit. Perusing the materials, it is not the case even according to the defendant that there is encroachment over the property and to identify as to whether there is encroachment or not, it can be the Commissioner''s report which would help the Court. But there is no encroachment as per agreements of sale. Looking to the recitals in the said agreements, the Court has to consider the said evidence as the documentary evidence in the matter because it is the contention that the agreements of sale were entered into by the defendant with plaintiff.

I have also perused the decisions relied upon by both parties. Admittedly, the present suit was decreed and the said decree was challenged before the appellate Court and the appellate Court remanded the matter to the trial Court for fresh disposal and even after the remand also the, evidence was recorded, the arguments were completed on the side of the plaintiff and only when the matter was set down for arguments of the defendant, the present application was filed. The trial Court has considered the matter extensively and came to the right conclusion in rejecting the application. Looking to the reasons assigned by the trial Court, they are valid and sound. No illegality has been committed by the trial Court in coming to such conclusion. The matter does not call for interference by this Court. No merit in the writ petition. It is accordingly rejected.