- 1 - HC-KAR NC: 2025:KHC:19508 WP No. 11154 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 11154 OF 2025 (GM-CPC) BETWEEN: 1. SRI MAHESH K., S/O SRI KRISHNAPPA, AGED ABOUT 38 YEARS 2. SMT. DIMPLE R., D/O SRI RAJANNA N., W/O SRI MAHESH K., AGED ABOUT 34 YEARS SL. NO.1 AND 2 ADDRESS ASIAN PUBLIC SCHOOL, NO.602/2, GUBBALALA RAGHUVANAHALLI, KANAKAPURA ROAD, BENGALURU - 560 061. …PETITIONERS (BY SRI H.MANJUNATH, ADVOCATE) AND: SRI RAMACHANDRA K., S/O LATE KEMPEGOWDA, AGED ABOUT 56 YEARS, R/AT NO.30, SRIRAMA KRUPA, 3RD STAGE, BANASHANKARI, BENGALURU - 560 085. …RESPONDENT (BY SMT. NITHYA V., ADVOCATE FOR SRI PRAKASH M. H., ADVOCATE) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE/ QUASH THE Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:19508 WP No. 11154 of 2025 IMPUGNED ORDER DTD 17.03.2025 IN O.S.NO.272/2018 PASSED BY THE COURT OF II ADDL. CIVIL JUDGE, BENGALURU RURAL DISTRICT AT BENGALURU ON THE APPLICATION MADE BY THE PETITIONERS UNDER ORDER 26 RULE 9 AND 10 OF CPC, 1908 PRODUCED AT ANNX-A. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioners-defendant Nos.1 and 2 are before this Court calling in question an order of the concerned Court which rejects an application filed by the petitioners under Order XXVI Rules 9 and 10 of the Code of Civil Procedure. 2. Heard Sri.H.Manjunath, learned counsel appearing for the petitioners, Smt.Nithya V, for Sri.Prakash M.H., learned counsel appearing for the respondent. 3. Facts in brief germane are as follows: (a) A suit in O.S.No.272/2018 is preferred by the respondent-plaintiff against the petitioners seeking permanent - 3 - HC-KAR NC: 2025:KHC:19508 WP No. 11154 of 2025 injunction. The said suit is decreed on 15.04.2023. On 22.05.2023, a Miscellaneous Petition in Misc.P.No.43/2023 under Order IX Rule 13 of the Code of Civil Procedure is filed praying to set-aside the judgment and decree dated 15.04.2023 in O.S.No.272/2018. The plaintiff-decree holder filed Execution Petition in Ex.No.11/2023 seeking enforcement of the judgment and decree in O.S.No.272/2018. An application is filed in O.S.No.272/2018 by the defendant Nos.1 and 2 invoking Order XXVI Rule 9 of the Code of Civil Procedure, seeking to appoint the Assistant Director of Land Records, Bengaluru, as the Court Commissioner to carry out site inspection and report regarding location, identity of the property. (b) The concerned Court by its order dated 17.03.2025 rejects the said application on the score that the suit is for bare injunction and it is the duty of the plaintiff to prove his case by letting oral and documentary evidence and therefore, there is no warrant for it to consider appointment of Court Commissioner for any purpose. It is this that has driven the defendants to this Court in the subject petition. - 4 - HC-KAR NC: 2025:KHC:19508 WP No. 11154 of 2025 4. Learned counsel appearing for the petitioners would vehemently contend that appointment of a Court Commissioner would become imperative in the case at hand as the identity of the plaint schedule property as mentioned in the plaint and the property belonging to defendant Nos.1 and 2 are entirely different. Therefore, the appointment of a Court Commissioner would become imperative. 5. Learned counsel appearing for the respondent submits that a Civil Revision Petition in C.R.P.No.860/2024 is preferred before this Court and this Court sets aside the judgment and decree dated 15.04.2023 passed in O.S.No.272/2018 restoring the suit with a direction to dispose the suit within six months. Therefore, there is no warrant to interfere with the order so passed by the concerned Court. 6. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the material on record. - 5 - HC-KAR NC: 2025:KHC:19508 WP No. 11154 of 2025 7. The afore-narrated facts are not in dispute. A suit for bare injunction was instituted by the respondent in O.S.No.272/2018. This comes to be decreed, finally reaches this Court in C.R.P.No.860/2024. The Coordinate Bench sets aside the order passed by the concerned Court on 15.04.2023 in O.S.No.272/2018 by the following order: "Learned counsel for the respondent submits on instructions that the application filed by the petitioners under Order XXI Rule 26 read with Section 151 of CPC in Misc. Petition No.43/2023 on the file of the II Additional Civil Judge, Bengaluru Rural District for stay of the execution of judgment and decree dated 15.04.2023 passed in O.S.No.272/2018 may be allowed. However, learned counsel submits that directions may be issued while allowing the Misc. Petition and restoring the suit in O.S.No.272/2018 while setting aside the judgment and decree dated 15.04.2023, that the proceedings shall recommence from the stage of cross examination of defendant witnesses. 2. Learned counsel for the petitioners would accept the said submission made by the learned counsel for the respondent. Consequently, Misc. Petition No.43/2023 filed at the hands of the petitioner herein before the II Additional Civil Judge, Bengaluru Rural District is hereby allowed. While setting aside the judgment and decree dated 15.04.2023 in O.S. No.272/2018. The suit in O.S.No.272/2018 is restored on the file of the II Additional Civil Judge, Bengaluru Rural District. It is also hereby directed that on recommencement of the proceedings, the learned II Additional Civil Judge, shall proceed from the stage of cross examination of the defendants witnesses. Further having regard to the fact that the suit was filed in the year 2018, learned II Additional Civil Judge shall endeavour to dispose of the suit as expeditiously as - 6 - HC-KAR NC: 2025:KHC:19508 WP No. 11154 of 2025 possible and at any rate within a period of six months from 27.01.2025. The parties are directed to appear before the II Additional Civil Judge, Bengaluru Rural District, on 27.01.2025, with awaiting any further notice." 8. The suit was directed to be recommenced and concluded within six months from 27.01.2025. At that stage, the subject application under Order XXVI Rule 9 of CPC is preferred. The application comes to be rejected on the following reasons: "10. This is the suit for bare injunction. In a suit for injunction it is the duty of the plaintiff to prove his case by letting oral and documentary evidence. It is settled position that in a suit for permanent injunction, the issue that has to be decided with regard to the possession of the properties. The plaintiff being dominus litus as per the Indian Evidence Act is bound to prove his case. It is not for the defendant to get a commissioner appointed in an injunction suit. 11. The defendant Counsel vehemently argued that in a suit for injunction also the Court Commissioner can be appointed and there is no bar to appointment of court Commissioner. In support of his contention he has also relied on the citations referred above. This Court has gone through the facts and circumstances of the citations relied by the defendant though it is permissible to appoint court commissioner in an injunction suit, discretion is left to the court to decide whether there is need for appointment of commissioner to decide the matter in dispute. In such a circumstance question of - 7 - HC-KAR NC: 2025:KHC:19508 WP No. 11154 of 2025 appointment of Court Commissioner does not arise at all. 12. Further in a suit for bare injunction burden always lies on the plaintiff to prove his possession over the suit schedule property as on the date of filing the suit. In the instant case, the plaintiff has not filed any application for appointment of Court Commissioner. Now the matter is set down for defendant evidence and the Hon'ble High Court has directed this court to dispose of the suit within 6 months. At this stage, the defendant has came up with this application this itself clearly indicates that, the defendant only with an intention to protract the proceedings has filed the present application. The report of the Court Commissioner will not assist the court to come to the proper adjudication. The oral evidence adduced by the parties and also documents produced by the both parties itself is relevant to the Court to come to the proper conclusion of the case on issues. In this circumstances, this court is of the firm opinion that, the defendant has not made out any prima-facie grounds to allow the application. Accordingly, I answered the point no.1 in the Negative. 13. Point No.2:- For the foregoing reasons, I proceed to pass the following: O R D E R The application. filed by the defendants Under Order XVI Rule 9 read with Section 151 of CPC is hereby rejected. For further cross of DW-5. Call On: 19.03.2025." - 8 - HC-KAR NC: 2025:KHC:19508 WP No. 11154 of 2025 The concerned Court holds that the suit is for injunction. If it is a case of injunction, it is the burden of the plaintiff to prove by oral and documentary evidence that he is entitled to a permanent injunction qua the possession of the properties. Therefore, the defendants cannot get a Commissioner appointed in an injunction suit when the Court has not encountered doubt about the suit schedule property. It is settled principle of law that an application seeking appointment of a Commissioner should not be allowed at a later stage in the trial if the only purpose is to protract the proceedings. If the court itself encourages a doubt, it is imperative that the doubt should be clarified by way of appointment of a Commissioner. 9. In the case at hand, the Court is not at doubt, the plaintiff is not at doubt, the defendants are at doubt and filed application in the teeth of a direction of this Court for conclusion of a trial within six months. Mere direction of conclusion of a trial would not however become a reason to pass orders contrary to law but I do not find anything contrary to law in the order passed by the concerned Court which bears cogent reasons. - 9 - HC-KAR NC: 2025:KHC:19508 WP No. 11154 of 2025 Finding no merit, the petition stands rejected. Sd/- (M.NAGAPRASANNA) JUDGE CBC List No.: 1 Sl No.: 20