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IN THE HIGH COURT OF AT BANGALORE

DATED THIS THE 1ST DAY OF MARCH, 2013

BEFORE

THE HON’BLE MR. JUSTICE H.N. NAGAMOHAN DAS

W.P. No. 117/2013 (GM-CPC)

BETWEEN : ------M.G.KALE GOWDA S/O GIDDE GOWDA AGED ABOUT 63 YEARS RESIDING AT CHIKKAHALLA GULLANPET POST, HALADUR HOBLI DISTRICT PIN : 577 101. … PETITIONER

(By Sri.M.S.RAJENDRA PRASAD, SR.ADV.)

AND : ------1. C.R.LAKSHMANA GOWDA S/O RUDREGOWDA AGED ABOUT 69 YEARS CHIKKAHALLA VILLAGE SATTIHALLI VILLAGE GULLANPET POST, CHIKMAGALUR TALUK PIN : 577 101.

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2. CHIEF SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA Dr.AMBEDKAR VEEDHI, BANGALORE – 560 001.

3. THE TAHASILDAR CHIKMAGALUR TALUK CHIKMAGALUR 577101.

4. THE REVENUE INSPECTOR HALADUR POST HALADUR HOBLI CHIKKAMAGALURU DIST- 577101.

5. C S BASEGOWDA AGED ABOUT 60 YEARS S/O SHESHEGOWDA RESIDING AT SATTIHALLI VILLAGE, GULLANPET POST ALADUR HOBLI, CHIKMAGALUR TALUK, CHIKMAGALUR DISTRICT PIN 577 101.

6. H N KRISHNEGOWDA AGED ABOUT 61 YEARS S/O NINGE GOWDA RESIDING AT HARALAGADDE- SATIHALLI VILLAGE GULLANPET POST CHIKKAMAGALURU TALUK CHIKKAMAGALURU DIST.

7. M G KRISHNE GOWDA AGED ABOUT 61 YEARS 3

S/O GIDDE GOWDA CHIKKAHALLA SATTIHALLI VILLAGE GULLANPET POST CHIKMAGALUR TALUK CHIKMAGALUR DISTRICT PIN 577 101.

8. M G JAGADEESHA AGED ABOUT 54 YEARS S/O GIDDE GOWDA MANIMAKKI VILLAGE POST CHIKMAGALUR TALUK CHIKMAGALUR DISTRICT PIN 577 101.

9. M G MOHAN AGED ABOUT 48 YEARS CHIKKAHALLA GULLANPET POST ALADUR HOBLI CHIKMAGALUR TALUK CHIKMAGALUR DISTRICT PIN 577 101.

10. M G MURALIDHAR AGED ABOUT 46 YEARS GULLANPET POST ALADUR HOBLI CHIKMAGALUR TALUK CHIKMAGALUR DISTRICT PIN 577 101.

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11. SMT HOOVAMMA AGED ABOUT 88 YEARS GULLANPET POST ALADUR HOBLI CHIKMAGALUR TALUK CHIKMAGALUR DISTRICT PIN 577 101.

12. KUMARI JYOTHI AGED ABOUT 48 YEARS GULLANPET POST ALADUR HOBLI CHIKMAGALUR TALUK CHIKMAGALUR DISTRICT PIN 577 101.

13. G J NAVEEN GOWDA AGED ABOUT 38 YEARS S/O GOPALAGOWDA

14. G G SIDDHARTHA AGED ABOUT 32 YEARS S/O JANARDHANA GOWDA

15. K C NANJEGOWDA AGED ABOUT 61 YEARS S/O CHANNEGOWDA

16. M N ASHWATHA AGED ABOUT 46 YEARS S/O NINGEGOWDA R/AT MAKONAHALLI POST TALUK CHIKKAMAGALURU DIST.

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17. B R SHAMBU AGED ABOUT 56 YEARS S/O RANGAPPA R/AT BILAGOLA POST MUDIGERE TALUK CHIKKAMAGALURU DIST. …. RESPONDENTS

(By Sri. PRAKASH M.H. ADV., FOR R1 R2 SERVED )

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO QUASH THE ORDER DATED 13.11.12 PASSED ON IA II FILED U/O 26 RULE 9 R/W SEC 151 OF CPC FOR APPOINTMENT OF COURT COMMISSIONER, IN OS 414/06 ON THE FILE OF II ADDL. CIVIL JUDGE & JMFC, CHIKMAGALUR VIDE ANNX-A.

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING – ‘B’ GROUP THIS DAY, THE COURT PASSED THE FOLLOWING;

O R D E R

Petitioner and respondent Nos. 5 to 17 are plaintiffs and respondent Nos.1 to 4 are the defendants before the trial Court. In this order, for convenience, the parties are referred to their status before the trial Court.

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2. Plaintiffs filed O.S. No. 414/2006 against the defendants for a declaration that they have got a right of easement by prescription over the plaint C schedule property and for permanent injunction. Before commencement of evidence the plaintiffs filed an application seeking appointment of Court Commissioner to inspect the spot and to submit a report. The trial Court vide order dated

15.04.2009 dismissed the said application. Thereafter the plaintiffs commenced the evidence and at that stage again they filed another application, I.A. No. 11 for appointment of Court Commissioner.

Under the impugned order dated 13.11.2012 the trial Court rejected the application. Hence, this writ petition by one of the plaintiffs.

3. Heard arguments on both the side and perused the entire writ papers.

4. It is settled position of law that Court Commissioner cannot be appointed for the purpose of collecting evidence. After completion of evidence on both the side if there is any ambiguity in 7

the evidence so adduced, then the Court may appoint a Court

Commissioner for the purpose of clarification of the ambiguity.

Since that stage has not yet reached in the instant case, the rejection of the present application by the trial Court is in accordance with law. However, after completion of evidence on both the side liberty is reserved to the plaintiffs to file a similar application and if such an application is filed, then the trial Court to consider the same in accordance with law without being influenced by the impugned order and also the earlier order rejecting the application for appointment of Court Commissioner. Accordingly, the writ petition is hereby disposed off.

Sd/- JUDGE.

LRS .