- 1 - HC-KAR NC: 2025:KHC-K:3254 WP No. 201651 of 2025 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 20TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION NO.201651 OF 2025 (GM-CPC) BETWEEN: SAYEDSAB S/O LADLESAB BANI, AGE: 48 YEARS, OCC: CIVIL CONTRACTOR, R/O NEAR K.S.R.T.C. DEPOT, NEHURU NAGAR, GYAGBAWDI, VIJAYAPURA-586101. …PETITIONER (BY SRI. MANVENDRA REDDY, ADVOCATE) AND: 1. THE COMMISSIONER, CITY MUNICIPAL CORPORATION, BAGALKOT ROAD, VIJAYAPURA-586101. 2. THE ASST. EXECUTIVE ENGINEER, CITY MUNICIPAL CORPORATION, BAGALKOT ROAD, VIJAYAPURA. DIST. VIJAYAPURA-586101. 3. THE DEPUTY COMMISSIONER, VIJAYAPURA-586101. …RESPONDENTS (BY SRI. SHESHADRI JAISHANKAR, AGA FOR R3; SRI. SACHIM M. MAHAJAN, ADVOCATE FOR R1 AND R2) Digitally signed by VARSHA N RASALKAR Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-K:3254 WP No. 201651 of 2025 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO I) ISSUE A WRIT IN THE NATURE OF THE CERTIORARI THEREBY QUASHING/SET ASIDE THE IMPUGNED COMMON ORDER ON I.A NOS.19 DATED 22.04.2025 VIDE ANNEXURE-J PASSED BY THE II ADDL. SENIOR CIVIL JUDGE AT VIJAYAPURA IN O.S. NO. 172/2016, II) ISSUE A WRIT IN THE NATURE OF MANDAMUS TO ALLOW THE APPLICATION IN I.A. NO.19 VIDE ANNEXURE-G AND THEREBY BY ISSUE WITNESS SUMMONS TO THE WITNESS MENTIONED IN THE APPLICATION IN I.A NO.19. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.I.ARUN ORAL ORDER (PER: HON'BLE MR JUSTICE M.I.ARUN) The petitioner herein is the plaintiff in O.S.No.172/2016 pending on the file of II-Addl. Senior Civil Judge, Vijayapura (for short, ‘the Trial Court’). 2. The defendants are the Officers of City Municipal Corporation, Vijayapura and the Deputy Commissioner, Vijayapura. - 3 - HC-KAR NC: 2025:KHC-K:3254 WP No. 201651 of 2025 3. The suit is filed on the ground that, defendant Nos.1 and 2/respondent Nos.1 and 2 have illegally trespassed onto the property of the petitioner and have demolished compound wall and a portion of the building constructed by the petitioner without authority of law. On the said ground, the suit is filed with the following prayers. a) Pass a decree for damages/compensation as against the defendant No.1 & 2 directing them to pay the amount of damages of Rs.25,00,000/- for having dismantled the building constructed on the property owned by the plaintiff in Sy.No.872/A of Mahalbagayat, Vijayapur on 27.08.2015 with 18% interest per annum from 27.08.2015 up to the realization of the suit claim. b) A decree for mandatory injunction be passed, directing the defendant No.1 & 2 to restore the compound wall and as well as the building which were situated as before 27.08.2015. In case, the defendants failed to restore the building the plaintiff be permitted to construct the same at the cost of the defendants and the same be ordered to be recovered by the attachment of - 4 - HC-KAR NC: 2025:KHC-K:3254 WP No. 201651 of 2025 the movable and immovable properties of defendant No.1 and 2. c) The cost of this suit and such other reliefs as Court deems fit be granted on the facts and circumstances of the case. 4. The respondents have filed their written statement and have contested the suit. 5. The Trial Court based on the pleadings, has formulated the following issues. 1. Whether the plaintiff proves that the defendant No.1 has high handedly and illegally demolished compound wall and building in suit property? 2. Whether the plaintiff further proves that non-granting of permission for construction by defendant No.1 within six months is deemed permission under Karnataka Municipality Act, 1964? 3. Whether the defendant No.1 prove that the suit land lis CDP., road? 4. Whether the plaintiff proves that he is entitled for damages/compensation of - 5 - HC-KAR NC: 2025:KHC-K:3254 WP No. 201651 of 2025 Rs.25,00,000/- from defendant Nos.1 and 2? 5. Whether the plaintiff is entitled for mandatory injunction as prayed for? 6. What order or decree? 6. During the course of the trial, the petitioner/plaintiff filed an application under Order 16 Rule 1 read with Section 151 of CPC with following prayer: “to issue witness summons to Sri.S.G.Rajashekhar who is the Predecessor of the commissioner CMC Vijayapura to testify his evidence. As stated his name in the list of witnesses in accordance with the I.A.No.XI which was filed under order 16 Rule 1 of CPC. As per order dated 03.09.2021.” 7. The Trial Court has dismissed the said application on the ground that, the issue involved in the suit pertains to the petitioner claiming damages based on the allegation of defendants/respondents illegally trespassing into his property and demolishing the compound wall and a portion of the building constructed - 6 - HC-KAR NC: 2025:KHC-K:3254 WP No. 201651 of 2025 by him and that the Officer sought to be summoned by the petitioner is an erstwhile Commissioner of City Municipal Corporation, Vijayapura and he could depose with regard to the evidence only based on the records available and not out of his personal knowledge and the same has been deposed by DW1. On the said ground, the application has been dismissed. Aggrieved by the same, the present writ petition is filed. 8. The case of the petitioner is that, it is essential to examine the witness sought to be summoned by the petitioner as he was the concerned Officer, who gave the necessary orders for committing the illegal act. 9. The records reveal that the witness sought to be summoned by the petitioner/plaintiff to examine in the original suit is only an official witness, who could depose in respect of the case by reference to the documents and not out of his personal knowledge. The first issue framed by the Trial Court is the crux of the suit and it pertains to - 7 - HC-KAR NC: 2025:KHC-K:3254 WP No. 201651 of 2025 whether respondent No.1-Authority has illegally demolished the compound wall and building on the suit schedule property. This has to be established by the plaintiff by producing the relevant records showing that the property belongs to him and that he had obtained the necessary permissions to put up the said construction and that defendant No.1 ordered for demolition of the construction put up without following due process of law and that it has been illegally demolished, for which it is not essential to examine the proposed witness sought to be summoned by the petitioner, who is the erstwhile Commissioner of respondent No.1/Corporation. 10. For the aforementioned reasons, the writ petition being devoid of merits is hereby dismissed. Sd/- (M.I.ARUN) JUDGE VNR/SDU LIST NO.: 1 SL NO.: 13 CT:SI