A. PAPANNA Vs. D.M. PATEL

JUDGEMENT

(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.

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

(3.) 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.