Y. RIYAZ PASHA Vs. M.S. RAMAMOHAN

JUDGEMENT

(1.) In a suit filed by the present petitioner as plaintiff in O.S.No.150/1994, in the Court of the learned Principal Civil Judge & Judicial Magistrate First Class at Srinivaspur (hereinafter for brevity referred to as "the Trial Court"), for the relief of permanent injunction, declaration of title and mandatory injunction, the present respondent No.1 as defendant No.1 had filed an application under Order XXVI, Rule 9 read with Sec. 151 of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as "the CPC"), seeking appointment of a Court Commissioner for local investigation, with neat sketch and Mahazar.

(2.) The said interlocutory application filed under Order XXVI, Rule 9 read with Sec. 151 of the CPC, which was numbered as I.A.No.10 came to be dismissed by the Trial Court, under its order dtd. 16/2/2000. Thereafter the suit of the plaintiff also came to be dismissed as devoid of merits by the order of the Trial Court dtd. 12/12/2013. Challenging the same, the plaintiff filed an appeal in R.A.No.103/2015 in the Court of the learned Principal District and Sessions Judge at Kolar (hereinafter for brevity referred to as "the first appellate Court").

(3.) During the pendency of the said regular appeal, the appellant, who was the plaintiff in the Trial Court himself filed an application i.e. I.A.No.V under Order XXVI, Rule 9 read with Sec. 151 of the CPC, seeking appointment of a Court Commissioner. After contest, the said application, by the order of the first appellate Court dtd. 27/3/2017 came to be dismissed on the ground of res judicata. Aggrieved by the same, the original plaintiff who was the appellant in the regular appeal before the first appellate Court, has filed this writ petition.