- 1 - NC: 2025:KHC-K:1519 WP No. 202970 of 2022 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 202970 OF 2022 (GM-CPC) BETWEEN: GURABASAPPA @ APPU S/O BASANGOUDA PATIL, AGE: 33 YEARS, OCC: PRIVATE SERVICE R/O SHAHAPUR PETH, VIJAYAPURA. …PETITIONER (BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE) AND: 1. JAYASHREE W/O DUNDAPPA KADECHUR, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O MULAGASI SHAHAPUR VES, VIJAYAPURA – 586101. 2. SUMANGALA W/O BASANGOUDA PATIL, AGE: 69 YEARS, OCC: HOUSEHOLD WORK, R/O SHAHAPUR PETH, VIJAYAPURA – 586101. 3. GOURI W/O VIJAYAKUMAR BURALI, AGE: 34 YEARS, OCC: HOUSEHOLD WORK, R/O SOUDATTI, DIST. BELAGAVI – 590001. …RESPONDENTS (BY SRI SACHIN M. MAHAJAN, ADV. FOR R1; NOTICE TO R2 IS DISPENSED WITH; R3 – SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER Digitally signed by RAMESH MATHAPATI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1519 WP No. 202970 of 2022 DATED 26.09.2022 REJECTING I.A NO. 13 AND 14 PASSED BY IV ADDL CIVIL JUDGE AND JMFC III VIJAYAPURA IN OS NO. 255/2011 AS PER ANNEXURE- F AND G AND ALLOW THE I.A NO. 13 AND 14 FILED BY PETITIONER. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B-GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER (PER: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL) This petition is filed challenging the order dated 26.09.2022 passed in O.S.No.255/2011 by the IV Additional Civil Judge and JMFC-III, Vijayapura. 2. Sri. Shivakumar Kalloor, learned counsel for the petitioner submits that the petitioner is the plaintiff in the suit for declaration that the petitioner-plaintiff has got right to take air and light passing through the suit window ‘W’ peacefully without interruption as a easementary right and other reliefs. It is submitted that the respondent – defendant has filed the detailed written statement by denying that there is no window existing in the common wall between the two properties. - 3 - NC: 2025:KHC-K:1519 WP No. 202970 of 2022 3. It is further submitted that even in the evidence, defendants are consistent with their stand that there is no window existing in the common wall which has necessitated the petitioner-plaintiff to file an application for appointment of Court Commissioner. However, the trial Court without considering the case properly has proceeded to reject the said application. It is also submitted that the trial Court has assigned only one reason, that the filing of an application is amounting to collection of evidence. The said finding of the trial Court is contrary to the settled principles of law. Hence, he seeks to allow the application by setting aside the impugned order. 4. Per contra, Sri. Sanchin M. Mahajan appearing for the contesting respondent No.1 supports the impugned order of the trial Court and submits that the plaintiff has to prove his case by leading legally acceptable evidence which he has already done in the suit. The filing of present application at belated stage when the matter is posted for arguments, is nothing but to protract the proceedings and - 4 - NC: 2025:KHC-K:1519 WP No. 202970 of 2022 is an abuse of process of law. Hence, he seeks to dismiss the writ petition. 5. I have heard the arguments of the learned counsel for the petitioner and learned counsel for the respondent No.1 and perused the material available on record. 6. This petition is filed challenging the order passed by the trial Court on I.A.Nos.13 and 14. Insofar as I.A.No.14 is concerned the present writ petition is not pressed as per the submissions of the learned counsel for the petitioner. I.A.No.13 was filed by the petitioner- plaintiff under Order 26 Rule 9 read with Section 151 of CPC seeking for appointing the Court Commissioner to make local investigation regarding existence of a window at ‘W’ in ‘AC’ suit property which is a wall between the two properties. The trial Court considering the provisions of law and rival submissions, has rejected the application. - 5 - NC: 2025:KHC-K:1519 WP No. 202970 of 2022 7. It is the specific case of the petitioner-plaintiff that he has the right of easement through window claiming it to be in the common wall between the two properties i.e., CTS.Nos.129 and 127 which has been specifically denied by the defendant in the written statement at paragraph No.3. The evidence of the defendant is in consonance with the stand in the written statement. Ultimately, the issue is with regard to the existence or non existence of window in the common wall, is required to be ascertained by the trial Court to decide the lis between the parties. Such being the issue, I am of the considered view that the interest of justice would be met if the application filed by the petitioner is allowed by appointing the Court Commissioner, so that the report of the Court Commissioner would aid the trial Court in deciding the dispute between the parties in a better manner. It is always open for the respondent-defendant to object the report of the Commissioner, if it goes against him. Keeping these principles in mind, I pass the following: - 6 - NC: 2025:KHC-K:1519 WP No. 202970 of 2022 ORDER i) Writ petition is allowed. ii) The impugned order dated 26.09.2022 passed on I.A.No.13 in O.S.No. 255/2011 by the IV Additional Civil Judge and JMFC-III, Vijayapura is set aside. iii) The trial Court is directed to appoint the Court Commissioner as sought in the application within three weeks and thereafter proceed in accordance with law. iv) No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE MCR List No.: 1 Sl No.: 23 CT: PS