HONNEGOWDA @ DORE S/O VAIRAMUDI GOWDA VAIRAMUDI INDUSTRIES IRON WORKS AZAD RASTHE, HASSAN Vs. SRI SRINIVASA S/O LATE C.V. THIMMARAYAPPA AND OTHERS

JUDGEMENT

(1.) THIS writ petition is directed against the common order passed on I.A.VII, dated 23.7.2011, in O.S.No. 188/07 (Annexure -A) by the Prl. Civil Judge and JMFC at Hassan.

(2.) THE petitioner herein is the defendant in the said suit. The suit is one for ejectment of the defendant. In the said suit, the defendant has taken a contention that the suit is not maintainable since it is a commercial building and it is more than 14 sq.mtrs. In order to disprove the said fact, the respondent -plaintiffs filed an application under Order XXVI Rule 9 of CPC to appoint a Commissioner to visit the suit property and take its measurements. The said application has been allowed and the Junior Engineer, Office of the Commissioner City Municipal Council, Hassan, has been appointed as Court Commissioner to visit the suit schedule property and submit his report to the Commissioner after due notice to the parties. The said order is assailed in this writ petition.

(3.) HAVING regard to the fact that it is the petitioner who is the defendant in the said suit has raised the issue of maintainability of the suit by contending that the suit schedule property measures less than 14 sq.mtrs. and the same being a Commercial property the suit is not maintainable, respondent -plaintiffs have sought appointment of a Commissioner in order to disprove the contention of the defendant herein. The report of the Commissioner would clearly indicate as to whether the suit schedule property is less than 14 sq.mtrs. or measures above the said figure. On the basis of the said report, the maintainability of the said suit could be decided by the trial court. Therefore, the petitioner cannot have any grievance to the appointment of the Commissioner to assist the court, to come to a conclusion with regard to the maintainability of the suit. Therefore, there is no merit in the writ petition and the same is rejected.