- 1 - NC: 2025:KHC-D:6071 WP No. 108542 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 108542 OF 2019 (GM-CPC) BETWEEN: M/S. CHAITANYA CONSTRUCTIONS A CONCERN ENGAGED IN THE BUSINESS AS BUILDER, PROMOTER AND DEVELOPER C/O. PLOT NO.142/15 NANAWADI BELAGAVI REPRESENTED BY SHRI. SHYAM SUDHIR LAD, AGE: 48 YEARS, OCC: BUSINESS. …PETITIONER (BY SRI. SHARAD V.MAGADUM, ADVOCATE) AND: 1. SHRI. SURESH S/O. SHANTARAM KHANOLKAR SINCE DECEASED BY HIS LRs., SMT. SMITA W/O. SURESH KHANOLKAR, AGE: 81 YEARS, OCC: BUSINESS, R/O: PLOT NO.142/14, NANAWADI, BELAGAVI. 2. VINAYAK S/O. SURESH KHANOLKAR AGE: 44 YEARS, OCC: BUSINESS, R/O: PLOT NO.142/14 NANAWADI, BELAGAVI. 3. MRS. ASHWINI W/O. AMIT MISAL AGE: 51 YEARS, OCC: BUSINESS, R/O: KADOLKAR GALLI, BELAGAVI. 4. MRS. AMITA W/O. SANTOSH BHAT AGE: 55 YEARS, OCC: HOUSE WIFE, OCC: PLOT NO.22, SHIVAJI COLONY, Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.07 15:52:40 +0530 - 2 - NC: 2025:KHC-D:6071 WP No. 108542 of 2019 TILAKWADI, BELAGAVI. 5. THE COMMISSIONER CORPORATION CITY OF BELAGAVI. 6. SUDHIR S/O. GANATRAO LAD SINCE DECEASED BY HIS LRs., SMT. LEENA W/O. SUDHIR LAD, AGE: 71 YEARS, OCC: HOUSEWIFE, R/O: WAMAN RESIDENCY GROUND FLOOR, KARIAPPA COLONY, NANWADI, BELAGAVI. 7. SHRI. SHYAM S/O. SUDHIR LAD AGE: 48 YEARS, OCC: SERVICE, R/O: WAMAN RESIDENCY GROUND FLOOR, KARIAPPA COLONY, NANWADI, BELAGAVI. 8. SHRI. RAM S/O. SUDHIR LAD AGE: 71 YEARS, OCC: SERVICE, R/O: WAMAN RESIDENCY GROUND FLOOR, KARIAPPA COLONY, NANWADI, BELAGAVI. 9. SMT. SHOBHA W/O SURESH LAD AGE: MAJOR, OCC: HOUSEHOLD, R/O: SARAF COLONY, SHAHAPUR, BELAGAVI. 10. SMT.SWATI W/O. SUBHASH LAD AGE: MAJOR, OCC: HOUSEHOLD, R/O: R.SY NO.142/15, NANAWADI, BELAGAVI. 11. MISS. MANSI D/O. SUBHASH LAD AGE: MAJOR, OCC: HOUSEHOLD, R/O: R.SY NO.142/15, NANAWADI, BELAGAVI. 12. SHRI. MANDAR S/O. SUBHASH LAD AGE: MAJOR, OCC: BUSINESS, - 3 - NC: 2025:KHC-D:6071 WP No. 108542 of 2019 R/O: R.SY NO.142/15, NANAWADI, BELAGAVI. 13. SMT. SMITA D/O. GANAPATRAO LAD AFTER MARRIAGE KNOWN AS ASHA W/O. SHRIPAD BORKAR, AGE: MAJOR, OCC: HOUSEHOLD, R/O: 10 PARVATI NIVAS SAPTAPUR, DHARWAD. 14. DEEPAK S/O. GANPATRAO LAD AGE: MAJOR, OCC: BUSINESS, R/O: BUNGALOW NO.428/3, OFFICER ENCLAVE, AIR FORCE STATION, JALAHALLI, BENGALURU. 15. SMT. SUDHA W/O. SATISH LAD AGE: MAJOR, OCC: HOUSEHOLD, R/O: SCHEME 52 C, RANAPRATAP ROAD, TILAKWADI, BELAGAVI. 16. SHRI. ANIKET S/O. SATISH LAD AGE: MAJOR, OCC: BUSINESS, R/O: SCHEME 52 C, RANAPRATAP ROAD, TILAKWADI, BELAGAVI. …RESPONDENTS (BY SRI. SHREEVATSA S.HEGDE, ADVOCATE FOR R1 TO R4; NOTICE TO R5 TO R16 ARE DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO, QUASH THE ORDER DATED 12.03.2019 PASSED BY IV ADDITIONAL CIVIL JUDGE AND JMFC, BELAGAVI ON I.A.NO.27 IN O.S.NO.877/ 2008 VIDE ANNEXURE-F AND FURTHER DISMISS THE SAID APPLICATION AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM - 4 - NC: 2025:KHC-D:6071 WP No. 108542 of 2019 ORAL ORDER The captioned petition is filed by defendant No.1 assailing the order of the trial Court passed on I.A.No.27 filed under Order 26 Rule 9 wherein plaintiff has sought appointment of a Court Commissioner to measure the width of the setback area between the suit property and multistoried residential and commercial apartment constructed by defendant Nos.3 to 11 through defendant No.1. The said application is allowed which is now impugned in the captioned petition. 2. Learned counsel appearing for the petitioner reiterating the grounds has vehemently argued and contended that learned Judge has proceeded to allow the appointment of Court Commissioner on the premise that defendants have not let in oral evidence. This observation is factually incorrect and contrary to records. He would point out that defendants have let in rebuttal evidence and therefore, Court is in a position to decide the controversy - 5 - NC: 2025:KHC-D:6071 WP No. 108542 of 2019 relating to violation of setback area based on oral and documentary evidence. 3. Although this Court was initially inclined to view the impugned order as arising from a possible misreading of the material on record, a closer examination of paragraph 17 of the order places the matter beyond doubt and effectively settles the controversy surrounding the correctness of the said order. In paragraph 17, the learned Trial Judge has categorically observed that a local inspection is not merely desirable but inevitable in the facts and circumstances of the present case. The dispute between the parties centers around alleged violations of the mandatory setback requirements an issue which, by its very nature, involves the physical features and measurements of the property in question. The Trial Court, having considered the oral and documentary evidence adduced by both parties, has rightly concluded that such evidence alone is insufficient for the effective adjudication of the controversy. - 6 - NC: 2025:KHC-D:6071 WP No. 108542 of 2019 4. Setback violations often involve nuanced spatial discrepancies that cannot be accurately appreciated or resolved through documents and witness testimonies alone. Measurements, physical structures, relative positioning, and deviations from sanctioned plans are best understood through on-site observation. In such a scenario, a local inspection becomes an indispensable tool for the Court to form a firsthand and accurate understanding of the premises in question. It is only through such direct inspection that the Court can verify the alleged encroachments, assess the extent of deviation (if any), and determine whether the construction conforms to the legally prescribed setback norms. 5. Therefore, when the learned Trial Judge, after completion of trial, arrived at the conclusion that a local inspection is the only effective means to adjudicate the core issue in dispute, such an exercise of judicial discretion cannot be faulted. It reflects a reasoned and judicious approach aimed at ensuring that the adjudication is - 7 - NC: 2025:KHC-D:6071 WP No. 108542 of 2019 grounded in an accurate understanding of the facts as they exist on the ground. This Court is of the considered opinion that the order directing local inspection has been passed for compelling and justifiable reasons, and is both legally sound and necessary in the interest of justice. 6. In that view of the matter, this Court is of the view that if the learned Judge has come to conclusion that local inspection is necessary, this Court exercising limited jurisdiction under Article 227 cannot interfere with the judicial discretion exercised by the Judge who has conducted trial and has come to conclusion that local inspection is required in the present case on hand. 7. In that view of the matter, the order under challenge does not warrant any interference. Writ petition is accordingly dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE CA Ct:vh List No.: 1 Sl No.: 26