- 1 - NC: 2025:KHC:3313 WP No. 49491 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 49491 OF 2018 (GM-CPC) BETWEEN: SMT. BHARATHI, W/O LATE NAGARAJU, AGED ABOUT 44 YEARS, RESIDING AT BEERESHWARA NAGARA (NEAR ANJANEYA TEMPLE), CHUNCHAGHATTA MAIN ROAD, KONANAKUNTE POST, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK, BENGALURU - 560 078. …PETITIONER (BY SMT. B.V. VIDYULATHA, ADVOCATE) AND: 1. SMT. SHASHIKALA, W/O LATE V. KRISHNA, AGED ABOUT 35 YEARS, 2. SRI. NAGARAJ, S/O LATE VENKATASWAMAPPA, AGED ABOUT 59 YEARS, BOTH ARE RESIDING AT C/O MANUNATHA FABRICATORS, NEAR SRAVANTHI KALYANA MANTAPA, CHUNCHAGHATTA GATE, Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3313 WP No. 49491 of 2018 KONANAKUNTE MAIN ROAD, BENGALURU - 560 078. …RESPONDENTS (BY SRI. K. VENKATESH, ADVOCATE FOR R2; VIDE ORDER DATED 28.08.2024 NOTICE TO R1 I DISPENSED WITH) THIS W.P IS FILED UNDER ARTICLES 226 AND 227 O THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 19.9.2018 ON IA NO.13 FILED UNDER ORDER 26 RULE 9 R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE, IN O.S.NO.968/2009 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE AT BENGALURU [CCH-28] VIDE ANNEXURE-A AND CONSEQUENTLY ALLOW THE ABOVE SAID APPLICATION AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the orders passed on I.A.No.13 in O.S.No.968/2009 dated 19.08.2018 by the XIV Addl. City Civil Judge at Bangalore [CCH No.28], the plaintiff is before this Court. 2. The plaintiff had filed the suit seeking permanent injunction restraining the defendants, their agents, servants interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule 'A' property and to issue a - 3 - NC: 2025:KHC:3313 WP No. 49491 of 2018 mandatory injunction directing the defendants to remove the compound wall put up by them on the encroached portion of the 'A' schedule property which is described at 'B' schedule property and put the plaintiff into possession. The suit is of the year 2009. After the entire evidence is let in and the matter is posted for arguments, at that stage, an application - I.A.No.13 came to be filed seeking appointment of the Commissioner to measure the entire suit schedule property and the defendants property, which came to be dismissed by the Court by the order impugned wherein the trial Court has observed that - present IA is filed by the applicant after completion of the evidence of both the parties and at the stage of argument to measure the entire suit schedule property of the plaintiff and defendants, since the suit is filed seeking mandatory injunction and permanent injunction, it is the duty of the plaintiff to prove the encroachment by the defendant on the basis of oral and documentary evidence, and not with the help of the Commissioner, it amounts to the collection of evidence. Further, the application is filed at the belated stage, when the case was posted for arguments on 11.04.2018 and again for defendants arguments on 24.04.2018, at that time, the plaintiff - 4 - NC: 2025:KHC:3313 WP No. 49491 of 2018 has come up with the present IA. The Court relying on the judgment of this Court in B.S.Nazir Hussain Khan Vs. Ashwathnarayan Rao and others1 has come to the conclusion that such an application cannot be entertained at this stage and accordingly dismissed the IA. Aggrieved thereby, the plaintiff is before this Court. 3. Learned counsel appearing for the plaintiff submits that when there is no dispute with regard to the title and in the cross-examination, when the defendants have stated that they have no objection if the Court Commissioner is appointed to survey the land and that is the only issue between the parties. There is no difficulty in appointing the Advocate Commissioner. The finding of the trial Court that the application is at belated stage and it amounts to collection of evidence, is contrary to law. It is submitted that there cannot be any straightjacket formula either to allow an application for the appointment of Commissioner or to dismissing it. In that regard, she had relied on a order passed by the Co-ordinate Bench of this Court in V. Girish vs. J. Darshan & Others2. This Court has set aside 1 Reported in 2004 (2) KAR. LJ191. 2 Arising out of W.P. No. 10852/2016. - 5 - NC: 2025:KHC:3313 WP No. 49491 of 2018 the order passed by the Court and observed that when there is an allegation of encroachment, any amount of oral and documentary evidence would not assist the Court to arrive at a proper conclusion. If the report of the Commissioner is on record, it would be a great assistance to the Court and accordingly this Court had allowed IA and set aside the impugned order by appointing the commissioner. 4. Learned counsel appearing for the petitioner submits that as this case is also arising out of the similar circumstances. Hence, in this case also the impugned order needs to be set aside and in the interest of justice, the IA needs to be allowed to effectively adjudicate the dispute between the parties. 5. This matter came up before this Court on 21.01.2025 and on that day, there was no representation on behalf of the respondents. This Court heard the learned counsel for the petitioner and posted this matter as part-heard. Today also, there is no representation on behalf of the respondents. Even on the earlier occasions also there was no representation on behalf of the respondent. As this is a Writ Petition of 2018 - 6 - NC: 2025:KHC:3313 WP No. 49491 of 2018 and sufficient opportunity is given to the respondents, this Court is proceeding with the matter. 6. Having heard the learned counsel appearing for the petitioner, perused the entire material on record. The suit is of the year 2009. The relief that is sought is a mandatory injunction and a permanent injunction stating that the defendants have encroached the part of the plaintiff's property and she has been put in possession of the property right from 2008 till 2018. The parties have let in their evidence and after the arguments of the plaintiff is completed, then when the matter is posted for the arguments of the defendants, at that point of time, this application is filed. The submission of the learned counsel for the petitioner that as the defendants have stated that they have no objection for appointment of an Advocate Commissioner, the trial Court ought to have allowed the application and also this Court is not able to appreciate if appointment of an Advocate Commissioner is required for the effective disposal of the case. It should have been filed at an appropriate point of time. In every case, filing an application at a later stage, it all depends upon the facts and circumstances of the case and the discretion that has to be exercised by the - 7 - NC: 2025:KHC:3313 WP No. 49491 of 2018 Court. In fact and circumstances of the case, the Judge has exercised the discretion and dismissed the application for appointment of the Commissioner. This Court is of the considered opinion that the Court had rightly considered the application and had dismissed it on 2 grounds i.e., one is at a belated stage and the other is with regard to collection of evidence and on both the counts, this Court is of the view that the order passed by the trial Court is well considered one and there are no grounds to interfere with the same. Hence, this Court is passing the following: ORDER (i) The Writ Petition is dismissed. (ii) All IAs., in this Writ Petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE KA List No.: 1 Sl No.: 3 CT: BHK