WP/65683/2016 of D S ARAVIND Vs LATE D V S N RAO on 29 December 2016

ORDER

Heard Sri D.S.Aravind, petitioner, party-in-person.

2D.Perused the impugned order dated 29.11.2016whereunder, interlocutory application I.A No.28 filed by.plaintiff under Order 26 Rule 9 CPC came to be rejected.

‘3.It is the contention of Sri D.S.Aravind, party-in-person, that impugned order nas been passed witnout.consideringnecessityof.appointmentof.CourtCommissioner, particularly, in the background of various|disputes pending between the parties in respect of suit.

property and as such, he seeks for setting aside of said.Order. Elaborating nis contention he submits, there is.probability of trial court consolidating all four cases and.as such he seeks for a direction to trial court not toconsolidate the suits. |

4At the out set, it requires to be noticed that there.is no such order of consolidation of suits and merely.because parties have filed similar affidavits in pending|Suits, apprenension of petitioner-plaintiff cannot be.entertained at this stage and in the absence of any|order having been passed by trial court to said effect. —

5. Insofar as the prayer of petitioner for quashing of|order dated 29.11.2016, Annexure-A is concerned,|records disciose tnat petitioner has instituted a suit in.OS.No.472/93 for relief of deciaration and perpetualinjunction and trial has been concluded. Petitioner-plaintiff has got nimself examined as PW.1 and in all ne.nas got marked 105 documents as Exs.P.1 to P.105..DW.1 is examined on Dbenalf of defendants and 101documents have been marked as Exs.D.1 to D.101(a).

Trial court has noticed that deposition of both parties.run into 99 pages and 90 pages respectively. As such,|it nas held tnat material evidence available on record is/sufficient enough for determination of controversy|between the parties namely, whether plaintiff is entitled for the relief of declaration and perpetual injunction or not and also a finding can be recorded as to whether.there.ISalleged|qisobpedienceOf|Order|DY.tnedefendants. As such, trial court has opined that said|power cannot be delegated to a Court Commissioner. —Trial court having noticed that suit in question is one of the oldest cases pending on its file and the matter has.been pending for addressing final arguments for the|past 13 years, has refused to entertain the saidapplication botn on merits as noticed nereinabove and.also on the ground that it would serve no useful purpose.in appointing a Court commissioner. The discretionary|order refusing to a appoint Court Commissioner is.normally not interfered by this court until and unless it|IS establisnedthatthere.IS|miscarriageIn.tneadministration of justice. As rightly observed by trial|

Court, the suit in question has been languishing for past.

13 years for the purpose of final arguments. The|application filed by plaintiff for appointment of Court.Commissioner has been rightly dismissed by imposing.costs by trial court. I do not find any error committed,by trial court and the decision relied upon by petitionerwould not come to Nis assistance to tne facts obtained|in the present case as noticed herein-above.

Hence, writ petition is nereby dismissed.

MV

SD/-.JUDGE.