,.I ..
IN THE HIGH coum ore' KARNATAKA
cmcurr BENCH AT DHARWAD
DATED THIS THE 413 DAY or SEPTEMBER 2003
BEFORE _
THE HON'BLE MRJUSTICE ANAND BYRA'li.';1:§iD"i35_i'::-'---I: f
wrerr PE'I'I'l'ION NO. 1S_.>641l;.'>,A(H}07{G!*»'.é»5.:E"%~:1_:_A'1A-.::: :
BETW EN: % M
1. Bhamtkumar Vastimal
Aged about 4-0 ycaxs,
2. Javaharalal
Aged about 50 ycarfi'. .. . '
Aged about 45 ' A ._
All an: R/9: V'
Near Abb5gc:i'%cp'mpoum:=,.L
(By M/zs.« Spaafc A.C.Puh:1,
S.P.Hudeciag4a:1di,V'Mah.aI1Até;ah S.I-Iosmath, Adva.)
thaldain.
2; R'a' 'nama . '*.i Jain,
Agedgabaut 53 years, Ooc: Business,
. {All zs1'fl:;R/0: Malmvecrcolony Road,
A Abbigcti Compound,
V' Dist. ..Rcscponx1cnt3
] Sri. Jayakumar S.Pati1 Assocnatcs' . Advs.)
8
Ig-
Thjswn'tpe1itionisfiledunaderArIicle3226and 2270!"
the Constitution of India praying to quash the impugned
order pasted on I.A.lX and X in O.S.No.299/03 dt.17.7.200'~7
passed by the Civil Judge (J1-.Dn.), Gadag vide Annex.W and
allow the l.A.IX and X with a direction to the Civi_1..__Judge
(Jr.Dn.) to complete evidence in the first instance,Fthen
appoint the commissioner if he requires such
This writ petition coming on for
Court made the tbllowing:
ORDEfi-._
Heard the CounselV'iifi::.!'_V tog
respondents.
2. The roots of the
Th’ P9.”-W93?” 3 °i”’1 3″” in
o.s.No.299; eeee Civil Juttge
(Jr. the respondent hetein,
had or a Court Commissioner to
in respect of the suit
petitioner herein rained objections to
” of a Court Commissioner in question, the
to is’ been appointed and he had submn1ed’ his
report closure of the p)aintiflF’s evidence, the
was examined as a witness and he was cross-
by the petitioner. When the case was posted for
evidence, the petitionexs/defindants made an
application for the appointment of a second Court
. »~ 3 –
Commissioner and yet another application to recall the
Commissioners Report filed earlier. The impufied ortier is
passed on these applications.
3. The trial court hav’mg rejected the apgfieafitaes
has opined as follcwsz
The Court had
commissionefs report, nor zejeacted thee
having peen examined has be.ez;_.cmsv”sA:e$&:sminct§’. v
the Court Commissioner wast ‘£16 been
cross-examined, even However,
since the petifioper that the Court
Conxmissbnexé £5{é1::t:’»’1}i:xe work in
terms of report is incomplete
and eppointmcat of a second
Court The trial court has
observed ‘vthe’v.defe:1cf2eents/petitionexs were yet to lead
lewlisng their evidence have filed
‘the” appointment of a second Court
‘I’he- reasons shown in the appiication fer
-V the Ccmmissionefs Report were not tenable
‘A u ” –. the appointment of second Court Commissioner
.’ not arise at the stage of the defendants’ evidence in
T V’ “the suit and aoconiingly has rejected the application.
4
.–LI’
4. Assuming that the report of the Court
Commissioner was inaccuxate and did not refer to all the
terms of refemncc and has not addressed the saint, the
petitioners would be in a position to seek the of
second Court Commissioner, if it is so
laying the foundation for such a prayer.’ the A V’
ma!’ court, the petitioner is yet EVT
and though the pctii:io31cr’ V_1_Viz::$V “to; the-
Commissioncfs Rcportjn the can
be better highlighted _t11§: leads his cvitiencc
in support of is dcmonsiratc,
with refcrcng ci}-idenée o4i1:_3V’fI’i£§”6;ocume1zts ava1la’ ble,
the inofiiéy’ report of the first Court
Commxo sioncr to seek the appointment of
5;’..o.:’I’hi§ is zicifi:i1mstanoc which can be addressed by
after the petitioner tenders evidence on
Iiis”‘ochga 1.f.V’oo..i’hc merits of the case. The impumed under,
thezoofofcg oannot be faulted on the primaxy principle that tbs:
V ~ conic! not have sought for appointment of a so-new
Commissioner without tendering end’ mice in support
V’ “of Ira case. As on principle, a Court Commissbncr is not
appointed to gather or furnish cvidcncc on behalf of the
é
party to the suit and it is on this pxincipie that without
tefidexing evidence on behalf of a party, of
appointment of Court Commissioner is -4
impermissible. On this principle, the trial
rejected the appointment of a H ‘A u
instance of petitioner even before :Iead_mA
and cannot be interefered L’
the petitioner may make out a the infirmity
writ large in the report Flhe Cogeoxissioner and if the
Trial Court is of a second.
Court court would be
obliged tog’ egafilication that may be
a_t._fiaVVV’V1.e1ter point of time. The
pe1;ifion:e:r. shutout from seeking the
appoi11me:oi”Va~ Commissioner. This will depend on
., 1AtI:1e’:fi:i’ez:it.:?. his he would seek to make out, after
V’ he
these observations the petition is disposed
of oézhergt no warrant for interference in the order of the
V’ Q ; at tins’ point of time.
Sd/-
Judge
Sub*