- 1 - HC-KAR NC: 2025:KHC:21213 W.P. No.13372/2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.13372/2020 (GM-CPC) BETWEEN: SRI. O.B. LAKSHMINARAYANA AGED ABOUT 55 YEARS S/O LATE AVALAPPA R/AT ABLOODU VILLAGE KASABA HOBLI, SIDLAGHATTA TALUK CHIKKABALLAPUR DISTRICT 562105. …PETITIONER (BY SRI. CHANDRASHEKARA REDDY R.A. ADV.,) AND: SRI. MUNEGOWDA AGED ABOUT 50 YEARS S/O LATE LAKSHMAIAH R/AT ABLOODU VILALGE KASABA HOBI, SIDLAGHATTA TALUK CHIKKABALLAPUR DISTRICT 562105. …RESPONDENT (BY SRI. G.A. VISWANATHA REDDY, ADV.,) THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE ORDER DATED 30.09.2020 ON I.A.NO.12 FILED UNDER ORDER XXVI RULE 9 R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE IN O.S.NO.188/2010 PASSED BY CIVIL JUDGE (JR.DN) AND JMFC SIDLAGATTA VIDE ANNEXURE-A AND FOR SUCH OTHER ORDER, DIRECTION AND DECLARATION & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:21213 W.P. No.13372/2020 CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking following reliefs: "Issue a writ of certiorari quashing the Order dated 30/09/2020 on I.A.No.12 filed under Order XXVI Rule 9 R/W Section 151 of the Code of Civil Procedure in O.S.No.188/2010 passed by Civil Judge (Jr.Dn.) and JMFC Sidlagatta vide Annexure-A and for such other order, direction and declaration as this Hon'ble Court may deem fit in the facts and circumstances of the case, in the interest of justice and equity." 2. Sri.Chandrashekara Reddy R.A., learned counsel appearing for the petitioner submits that the respondent filed a suit for declaration and permanent injunction against the petitioner. It is submitted that in written statement filed by the petitioner, petitioner has taken categorical stand that he is the absolute rightful owner in possession of the property in Sy.No.306/1, measuring an extent of 3 acres 04 guntas with the boundaries mentioned in the same and the said property was acquired in the partition deed dated 14.02.1994 effected between the petitioner and his brother Sri.O.B.Krishnappa. It is further submitted that the - 3 - HC-KAR NC: 2025:KHC:21213 W.P. No.13372/2020 respondent, who is the plaintiff claims that he is in possession of the land measuring 0.01¼ guntas out of 0.04 guntas in Sy.No.306/1 of Abloodu Village, Kasaba hobli, Sidlaghatta taluk. There is a serious dispute with regard to the ownership and possession of the properties claimed by the petitioner and the respondent. Hence, an application came to be filed under Order 26 Rule 9 r/w Section 151 of CPC seeking for an appointment of a Court Commissioner which came to be rejected without assigning any reason. It is also submitted that the said application was filed to ascertain the properties claimed by each of the parties and their respective possession and without considering the said aspect, the trial Court has rejected the application without assigning any reason only on the ground that the matter is of the year 2010. In support of his contention, he places his reliance on the decision of this Court in the case of Krishnamurthy M. - 4 - HC-KAR NC: 2025:KHC:21213 W.P. No.13372/2020 vs. K.Narayanaswamy and Others1. Hence, he seeks to allow the petition by appointing the Court Commissioner. 3. Sri.G.A.Viswanatha Reddy, learned counsel appearing for the respondent supports the impugned order of the trial Court and submits that filing of the application by the petitioner is an abuse of the process of law and with an intention to drag on the proceedings. Hence, he seeks to dismiss the petition. 4. I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondent and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced. 5. The respondent has filed a suit in O.S.No.188/2010 pending on the file of the Civil Judge (Jr.Dn) & JMFC, Sidlaghatta. The said suit is for declaration of ownership and injunction to the suit schedule property. 1 2010 SCC OnLine Kar 2454 - 5 - HC-KAR NC: 2025:KHC:21213 W.P. No.13372/2020 The respondent/plaintiff is claiming the ownership of 0.01¼ guntas out of 0.04 guntas of land in Sy.No.306/1 situated at Abloodu Village, Kasaba hobli, Sidlaghatta Taluk. The petitioner in the written statement at paragraph No.4 has categorically made assertion that he is the absolute owner of land measuring to an extent of 3 acres 04 guntas in Sy.No.306/1 of Abloodu Village, Kasaba hobli, Sidlaghatta Taluk. It is not in dispute that the parties to the proceedings have adduced the evidence and thereafter, the application under Order 26 Rule 9 r/w Section 151 of CPC came to be filed by the petitioner. The trial Court rejected the application solely on the ground that the suit is of the year 2010. It has not assigned any reason for rejection of such application. It would be useful to extract paragraph No.6 of the judgment of this Court in the case of Krishnamurthy M. referred supra. ”6. An order to issue a commission to any person under Order 26 Rule 9 CPC is discretionary. A report of the commissioner under Order 26 Rule 10 CPC is a piece of evidence which can be rebutted by other evidence. The appointment of a commissioner would depend upon the nature of the dispute and the facts and circumstances of each case. The power to appoint - 6 - HC-KAR NC: 2025:KHC:21213 W.P. No.13372/2020 a commissioner under Order 26 Rule 9 CPC being wide and discretionary is required to be considered keeping in view the nature of dispute and the facts and circumstances of the case. The application filed, upon consideration, should be disposed off by reasoned order. The stage at which the commissioner should be appointed, there can be no hard and fast rule. The pre-requisite for issue of a commission is for satisfaction of the court that the local investigation is requisite and proper and such satisfaction is to be judicial satisfaction based on reason." 6. A Co-ordinate Bench of this Court in the case of Sri.Shadaksharappa vs. Kumari Vijayalaxmi and Others2 has considered the various aspects and laid down the guidelines for consideration of application for appointment of Court Commissioner by the trial Court. Keeping in mind the aforesaid enunciation of law laid down by this Court, I am of the considered view that the trial Court has committed grave error in rejecting the application without any reason. The appointment of a Court Commissioner for the purpose of ascertaining the claim of both parties and their respective possession would aid the trial Court in deciding the relief sought in the plaint. It cannot be lost sight of the fact that the petitioner 2 2023 SCC OnLine Kar 53 - 7 - HC-KAR NC: 2025:KHC:21213 W.P. No.13372/2020 in his cross-examination has admitted that he is agreeable for appointment of Court Commissioner. Considering the said aspect, evidence on record and considering the nature of dispute involved between the parties, I am of the considered view that it is a fit case to appoint the Court Commissioner to ascertain the factual matters. For the aforementioned reasons, I proceed to pass the following: ORDER i) Writ petition is allowed. ii) The impugned order dated 30.09.2020 on IA.No.12 in O.S.No.188/2010 by the Civil Judge (Jr.Dn) & JMFC, Sidlaghatta is hereby set aside. Consequently, IA.No.12 filed under Order 26 Rule 9 r/w Section 151 of CPC is allowed. iii) The trial Court is directed to appoint the official surveyor as a Court Commissioner. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 43