- 1 - NC: 2025:KHC:9336 WP No. 54162 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 54162 OF 2018 (GM-CPC) BETWEEN: SRI HARISHCHANDRA SHERIGARA, S/O LATE YECHCHU SHERIGARTHI, AGED ABOUT 54 YEARS, R/AT NO.7-56, KANNARPADY KADEKAR VILLAGE, UDUPI TALUK-576 103. …PETITIONER (BY SRI MADHUKAR M DESHPANDE & SRI B.S VENKATANARAYANA, ADVOCATES) AND: 1. SRI K DEVADASA BHANDARY, S/O LATE K. MUKUNDA S. BHANDARY, AGED ABOUT 85 YEARS, R/AT KALSANKA GUNDIHALLI VILLAGE, UDUPI TALUK-576 104. 2. SRI K. GOKULDAS BHANDARY, S/O LATE K. MUKUNDA S. BHANDARY, AGED ABOUT 82 YEARS, R/AT KALSANKA GUNDIHALLI VILLAGE, UDUPI TALUK-576 104. 3. SMT. PREMA PRABHU, D/O LATE K. MUKUNDA S. BHANDARY, AGED ABOUT 78 YEARS, R/AT KALSANKA GUNDIHALLI VILLAGE, UDUPI TALUK-576 104. 4. SMT. ARUNA PAI, Digitally signed by ROOPA R U Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9336 WP No. 54162 of 2018 D/O LATE K. MUKUNDA S. BHANDARY, AGED ABOUT 76 YEARS, R/AT KALSANKA GUNDIHALLI VILLAGE, UDUPI TALUK-576 104. 5. SMT. VIJAYA BHAT, D/O LATE K. MUKUNDA S. BHANDARY, AGED ABOUT 73 YEARS, R/AT KALSANKA GUNDIHALLI VILLAGE, UDUPI TALUK-576 104. 6. SRI K. SHESHAGIRI BHANDARY, D/O LATE K. MUKUNDA S. BHANDARY, AGED ABOUT 78 YEARS, R/AT KALSANKA GUNDIHALLI VILLAGE, UDUPI TALUK-576 104. 7. SRI SUMANA MALLYA, D/O LATE K. MUKUNDA S. BHANDARY, AGED ABOUT 78 YEARS, R/AT KALSANKA GUNDIHALLI VILLAGE, UDUPI TALUK-576 104. 8. SMT. GEETHA BHAT, D/O LATE K. MUKUNDA S. BHANDARY, AGED ABOUT 78 YEARS, R/AT KALSANKA GUNDIHALLI VILLAGE, UDUPI TALUK-576 104. …RESPONDENTS (BY SRI M SUDHAKAR PAI, ADVOCATE FOR R-1, R-2 & R-5; PETITION AGAINST R-4 ABATED V/O DATED 30.10.2024; R-3, R-6, R-7 & R-8 SERVED AND UNREPRESENTED) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND SET ASIDE THE ORDER DATED 22.09.2018 VIDE ANNX-A PASSED IN O.S.NO.732/2016 BY THE IV ADDL. CIVIL JUDGE & JMFC, UDUPI AND ALLOW THE INTERLOCUTORY APPLICATION IN I.A.NO.XII FILED BY THE PETITIONER IN O.S.NO.732/2016 - 3 - NC: 2025:KHC:9336 WP No. 54162 of 2018 VIDE ANNX-A PENDING ON THE FILE OF THE IV ADDL. CIVIL JUDGE AND JMFC, UDUPI. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER Petitioner who was a plaintiff in O.S.No.732/2016 filed by him against respondents/defendants for the relief of permanent injunction is before this Court, aggrieved by the order dated 22.9.2018 passed by the trial Court rejecting his application filed under Section 75(b) and Order XXVI Rule 9 CPC (IA No.XII) for appointment of the Commissioner to evaluate plaint 'A' schedule property. 2. Learned counsel for petitioner reiterating the grounds urged in the petition submits that the petitioner filed a suit for bare injunction against respondents/defendants, who in the written statement made a counter claim seeking the relief of possession. As such, the petitioner has filed written statement to the said counter claim. In that, he specifically raised the issue with - 4 - NC: 2025:KHC:9336 WP No. 54162 of 2018 regard to payment of court fee by the respondents/defendants. In furtherance, plaintiff filed above application in IA No.XII seeking appointment of Commissioner to evaluate the property for the purpose of determination of the court fee to be paid as required under Section 29 of the Karnataka Court Fee and Suit Valuation Act, which claim came to be rejected on a completely untenable and erroneous reasoning not adverting to the application. Hence, seeks for setting aside of the said order. 3. Heard. Perused the records. 4. The application filed by the petitioner at IA No.XII is for the following reliefs: "Application under Section 75(b), Order XXVI, Rule 9 of the Code of Code of Civil Procedure, 1908. For the reasons stated in the accompanying affidavit, the petitioner-plaintiff prays that this court may be pleased to appoint a court commissioner, preferably an Advocate of the local Bar, assisted by the Executive Engineer, PWD, Udupi for the purpose of evaluating the plaint A schedule property described here below and the building and other improvements standing therein and call for from the commissioner a report on the - 5 - NC: 2025:KHC:9336 WP No. 54162 of 2018 points mentioned in the work memo annexed herewith and grant the petitioner such other and further reliefs as the circumstances of the case may require…." 5. Clearly by the above application, plaintiff has sought for an appointment of Commissioner for the purpose of evaluating the plaint 'A' schedule property. The reasoning assigned by the trial Court for rejecting the application by the impugned order is as under: "9. Point No.1 and 2: The plaintiff has filed the above suit against the defendants for the grant of perpetual injunction restraining the defendants, their men, from interfering with the peaceful possession and enjoyment of plaint property and dispossessing him from the plaint property and for grant of mandatory injunction directing the Tahsildar, Udupi to mutate RTC of the plaint property in the name of the plaintiff and other reliefs. The plaintiff has filed IA No.XII for appointment of court commissioner to evaluate the plaint "A" schedule property and for report thereon. In a suit for injunction first of all an order appointment of court commissioner cannot be issue and if at all if its is issued it amounts to collection of evidence. In the present suit the plaintiff should prove that whether he is in possession or not as on the following to this suit and interfering caused by the plaintiff, this two things can be decided in a suit for permanent injunction. If at all commission is issued no propose would be served in elucidating the dispute in the present case, therefore I proceed to answer point No.1 is answered in the Negative." - 6 - NC: 2025:KHC:9336 WP No. 54162 of 2018 6. As rightly contended by the learned counsel for the petitioner, the trial Court appears to have misread the prayer sought in the application as the petitioner has not sought for "collection of evidence" with regard to his possession over the property. On the other hand, he has only sought for the appointment of the valuer to assess the value of plaint 'A' schedule property or the purpose of payment of Court fee by the respondents/defendants in view of the counter claim for the relief of possession sought for in the written statement, which aspect has been lost sight of by the trial Court while considering the said application. 7. In that view of the matter, the impugned order to the extent of IA No. XII is set aside. 8. Matter is remitted to the trial Court to reconsider the said application and pass appropriate orders after hearing the parties. - 7 - NC: 2025:KHC:9336 WP No. 54162 of 2018 9. Accordingly, writ petition is disposed of. Sd/- (M.G.S. KAMAL) JUDGE tsn* List No.: 1 Sl No.: 6