CANTREADS (P) LTD. Vs. ANNIE AUGUSTINE KUNNAPILLIL

JUDGEMENT

(1.) Petitioners being the fourth and fifth opponents in the contesting respondents' appeal in R.A.No.30/2018 have knocked at the doors of Writ Court for assailing the Order dated 28.04.2018, a copy whereof is at Annexure-A, whereby Court Commissioner has been appointed for conducting local inspection of the road in question and to make a report thereon; in W.P.No.27809/2018, they are calling in question the order dated 02.06.2018, a copy whereof is at Annexure - A, whereby the order of temporary injunction has been extended on the basis of the Memo filed by the respondent-appellants; both these orders are made by the learned Principal Senior Civil Judge Mangaluru, D.K. District.

(2.) After service of notice, respondents having entered appearance through their counsel resist the writ petitions making submission in justification of the impugned orders; both the writ petitions are taken up for final disposal together, with the consent of the Bar, since common questions of law and facts arise between the same parties and both the impugned orders emanate from the very same appeal still pending on the file of the Court below.

(3.) Learned Senior Advocate Mr.B.V. Acharya submits that the impugned order appointing Court Commissioner is unsustainable in the absence of an application seeking leave of the Appellate Court for production of additional evidence in terms of Order XLI Rule 27 of CPC, 1908; even otherwise, the application filed under Order XXVI Rule 9 of CPC, 1908 could not have been taken up for consideration independent of the appeal itself; he also finds fault with the impugned order extending the temporary injunction only on the basis of Memo instead of an application; he also submits that already the entire construction of the building in question having been accomplished, what remains is the peripheral works such as some plastering and interiors; and therefore, there was no justification for the extension of the restraint order any longer; these aspects having not been adverted to by the court below despite urgement, Mr.Acharya submits, the impugned orders are infected with infirmities that render them vulnerable for challenge in writ jurisdiction.