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2019 DIGILAW 628 (KAR)

BEENA ANTHONY v. KRISHNAPPA

2019-03-12

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. The plaintiff has filed this writ petition against an interlocutory order dated 22.11.2018 whereby the trial Court has rejected I.A.No.36 filed under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 made in O.S.No.1231/2006 with cost of Rs.500/-. 2. It is the case of the plaintiff that the defendants are the owners of the suit schedule property in question. They have entered into an agreement of sale on 01.07.2004 for a valuable consideration of Rs.10,33,500/- and on the same day, the defendants have received a sum of Rs.2,00,000/- as advance from the plaintiff. Though the plaintiff was repeatedly demanding the defendants to comply with the terms of the agreement of sale and to execute a sale deed in favour of her, the defendants avoided the same on one way or the other. Therefore, the plaintiff has filed the suit for specific performance to enforce the agreement of sale dated 01.07.2004. 3. The defendants have filed their written statement denying the averments made in the plaint. They contended that only the first defendant had executed the sale agreement dated 01.07.2004 and received the advance amount of Rs.2,00,000/-. The other defendants never executed any such sale agreement as alleged in the plaint and the plaintiff shall prove the same. They have further contended that the first defendant had received the advance amount and the other defendants have no knowledge of the same. The time of eleven months was essence of contract and even assuming, but not conceding that if the last payment was received on 30.11.2004, even then also the sale transaction should have been completed by the end of October, 2005 as admitted by the plaintiff herself. The notice calling upon to execute the sale deed was issued only on 26.12.2005 i.e. after lapse of time fixed in the agreement and therefore, sought for dismissal of the suit. 4. During the pendency of the proceedings, the plaintiff has filed an application-IA.No.24 under Order 39 Rules 1 and 2 read with Section 151 of CPC for grant of temporary injunction. 4. During the pendency of the proceedings, the plaintiff has filed an application-IA.No.24 under Order 39 Rules 1 and 2 read with Section 151 of CPC for grant of temporary injunction. The trial Court considering the application and the objections to the application, by its order dated 17.03.2018 has allowed the application partly by restraining the defendants from changing the nature and character of the suit schedule property, except installing stone block around the suit schedule property to protect the same and carryout agricultural operation pending disposal of the suit. 5. The said order passed by the trial Court has reached finality, since the defendants have disobeyed the same. Therefore, the plaintiff has filed an application-IA.No.36 under Order 26 Rule 9 read with Section 151 of CPC to appoint a Commissioner for local investigation to inspect the spot and report about the present condition of the suit schedule property contending that the defendants have disobeyed the said order passed by the trial Court and they entered into private negotiation with the real estate developers and started to change the nature of the suit schedule property by forming illegal residential layout in order to sell by individual plot. 6. The said application was resisted by the defendants by filing objections and contended that it is the definite case of these defendant that at the earliest point of time, there was eucalyptus plantation existing on the suit property. Under the changed circumstances, these defendants were forced to remove the eucalyptus plantation in order to bring the suit property for agricultural operation to raise ragi and other annual and biannual crops. In order to protect their property from encroachment from the neighbours, these defendants were forced to put up stone stabbed compound around the suit property as on the month of April 2017 itself and they have not disobeyed the order passed by the court. The question of appointing Court Commissioner would not arise as it amounts to nothing but collection of evidence and therefore, sought for dismissal of the application. 7. The trial court after considering the application and objections, by the impugned order dated 22.11.2018 dismissed the said application. Hence, the present writ petition is filed. 8. Heard Sri.Prashanth Kumar.D., learned counsel for the petitioner. 7. The trial court after considering the application and objections, by the impugned order dated 22.11.2018 dismissed the said application. Hence, the present writ petition is filed. 8. Heard Sri.Prashanth Kumar.D., learned counsel for the petitioner. He contended that the impugned order passed by the trial court is contrary to the material on record and the same is in violation of the very object of Order 26 Rule 9 of the Code of Civil Procedure, 1908. He further contended that the defendants in their objections have taken a stand that the photographs produced by the plaintiff is of the adjacent land and not the disputed land. Such being the case, the trial court in order to find out the true facts regarding the violation of its order should have taken more responsibility and allowed the prayer to appoint the commissioner to conduct the local investigation. He further contended that the trial court failed to appreciate the fact that the defendants have during the pendency of the present proceedings before the trial court have created third party rights over the plaint schedule property by entering into agreements for sale of the plaint schedule property and other agreement related to developmental activities of the plaint schedule property. 9. He further contended that the defendants with the assistance of the anti-social elements have developed the plaint schedule property into residential layout and are in the process of selling the same to the gullible general public for valuable consideration and in the process of making illegal gain at the cost of the plaintiff. He further contended that the trial court erred in rejecting the application holding that the appointment of Commissioner will amount to collection of evidence by the court. He further contended that the trial court cannot prevent the plaintiff from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner to find out from the inspection of the suit schedule property as to whether there are any developmental activities under taken in disobedience of the interim order dated 17.03.2018. In support of his contention, he relied on a decision of this Court in the case of Bhimappa Rayappa Chougala Vs. Shrikant and others, (2014) 2 KCCR 1652 . 10. In support of his contention, he relied on a decision of this Court in the case of Bhimappa Rayappa Chougala Vs. Shrikant and others, (2014) 2 KCCR 1652 . 10. Having heard the learned counsel for the petitioner, it is an undisputed fact that the present petitioner who is the plaintiff before this Court filed a suit for specific performance to enforce the agreement of sale dated 01.07.2004 contending that the defendants are the owners of the suit schedule property in question. The defendants have denied the agreement of sale and contended that the first defendant received certain advance amount and other defendants never executed the agreement of sale and the suit filed is barred by law and sought for dismissal of the suit. It is also not in dispute that during the pendency of the proceedings, an application was filed by the plaintiff seeking temporary injunction restraining the defendants from changing the nature and character of the suit schedule property pending disposal of the suit. 11. The trial court by the order dated 17.03.2018 allowed the application in part and granted temporary injunction restraining the defendants from changing the nature and character of the suit schedule property, except installing stone blocks around the suit schedule property to protect the same and carry out agricultural operation pending disposal of the suit. It is the specific case of the plaintiff that inspite of the order passed, the defendants have disobeyed and started to change the nature of the suit. Therefore, the plaintiff filed an application under Order 39 Rule 2A read with Section 151 of the Code of Civil Procedure, 1908 against the defendants for violation of injunction order. 12. Admittedly, the said application was treated as separate miscellaneous application and registered as Misc.Application No.55 of 2018 and posted for enquiry. Admittedly, enquiry is not yet commenced and it is for the plaintiff to prove that there is a violation of injunction order passed by the trial court. If the plaintiff prove that there is violation of the order passed by the defendants, the court definitely will take cognizance of the order to be passed under Order 39 Rule 2A of the Code of Civil Procedure, 1908. In the meanwhile, the present application came to be filed for appointment of Court Commissioner for local inspection to inspect and report about the present condition of the suit schedule property. In the meanwhile, the present application came to be filed for appointment of Court Commissioner for local inspection to inspect and report about the present condition of the suit schedule property. The application filed for appointment of Court Commissioner is nothing but seeking collection of evidence. Therefore, the plaintiff filed an application for enquiry to know the condition of the existing property. When the defendants have denied the disobedience of the order passed by the trial court granting injunction, it is a matter to be adjudicated on the miscellaneous application pending between the parties after enquiry. 13. Admittedly, in the present suit, the trial has not yet commenced. Before commencement of trial, the application filed for appointment of Court Commissioner to report whether the defendants have violated the injunction order or not, when the plaintiff has already invoked the provisions under Order 39 Rule 2A read with Section 151 of the Code of Civil Procedure, she cannot invoke Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure to find out the condition of the suit schedule property as on today. It amounts to collection of evidence as rightly recorded by the trial court. Therefore, the order passed by the trial court is just and proper. The plaintiff has not made out any ground to interfere with the impugned order in exercise of power under Article 227 of the Constitution of India. 14. The judgment relied on by the learned counsel for the petitioner in the case referred supra is not applicable to the present facts of the case. In the said case, it was a specific case of the plaintiff that the defendants have encroached upon their property. Only if the plaintiffs are able to show that the defendants have encroached upon their property, they would be entitled to the relief. Any amount of oral evidence is not substantive or sufficient to prove the encroachment. To cut short the litigation to reduce recording evidence, the trial court in its wisdom, thought it fit to appoint a commissioner even before the commencement of the trial. That is how the duration of litigation could be curtailed and speedy disposal of the civil matter could be achieved. To cut short the litigation to reduce recording evidence, the trial court in its wisdom, thought it fit to appoint a commissioner even before the commencement of the trial. That is how the duration of litigation could be curtailed and speedy disposal of the civil matter could be achieved. Admittedly, in the present case, the petitioner has already invoked provisions under Order 39 Rule 2A read with Section 151 of the Code of Civil Procedure, 1908 and the same is pending adjudication. Therefore, the said judgment is not applicable to the present facts of the case. In view of the above, this writ petition is dismissed as devoid of merits.