- 1 - HC-KAR NC: 2025:KHC:20632 W.P. No.51446/2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.51446/2019 (GM-CPC) BETWEEN: 1. G. CHENNARAYAPPA AGED ABOUT 73 YEARS S/O LATE GUMMAIAH R/AT NO.22, 4TH MAIN, 5TH CROSS BEML 5TH STAGE, R.R. NAGAR BENGALURU-560 098. 2. D. HEMANNA AGED ABOUT 67 YEARS S/O LATE DEVAPPA R/AT NO.429, H CROSS IDEAL HOME CO-OP SOCIETY LAYOUT R.R. NAGAR, BENGALURU -560 098. …PETITIONERS (BY SRI. C.M. NAGABUSHANA, ADV.,) AND: 1. SMT. AMBUJAMMA W/O LATE NARASIMHA MURTHY AGED ABOUT 71 YEARS. 2. SMT. HEMAVATHY D/O LATE NARASIMHA MURTHY AGED ABOUT 54 YEARS. 3. SRI. BHANUPRAKASH S/O LATE NARASIMHA MURTHY AGED ABOUT 52 YEARS. 4. SRI. LAKSHMISHA S/O LATE NARASIMHA MURTHY AGED ABOUT 50 YEARS. Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:20632 W.P. No.51446/2019 1 TO 4 ARE RESIDING AT NO.2/1 1ST MAIN ROAD, OPP TO GOVT SCHOOL BYATARAYANAPURA, MYSORE ROAD. 5. SRI. HEMANTH KUMAR S/O LATE RAMAKRISHNAPPA AGED ABOUT 49 YEARS. 6. SRI. MOHAN KUMAR S/O LATE RAMAKRISHNAPPA AGED ABOUT 47 YEARS. 7. SMT. ASHADEVI D/O LATE RAMAKRISHNAPPA AGED ABOUT 53 YEARS. 8. SMT. HEMALATHA D/O LATE RAMAKRISHNAPPA AGED ABOUT 50 YEARS. 5 TO 8 ARE RESIDING AT MP/42, 3RD CROSS IYANNASHETTY LAYOUT BYATARAYANAPURA, MYSORE ROAD BENGALURU-560 026. 9. SRI. ASHOKA AGED ABOUT 47 YEARS S/O LATE CHIKKATHIMMAIAH R/AT KENCHENAHALLI VILLAGE KENGERI HOBLI, BENGALURU-560 056. …RESPONDENTS (BY SRI. K. VIJAYA KUMAR, ADV., FOR R1 TO R4 R5, R6, R7, R8 & R9 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 20.09.2019, ON I.A.NO.4, PASSED BY THE VI ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGLAURU CCH NO.11 IN O.S.NO.8874/2014 AT ANNX-F AND THEREBY ALLOW THE APPLICATION FILED BY THE PETITIONERS IN I.A.NO.4 AT ANNX-D & ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:20632 W.P. No.51446/2019 CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking the following reliefs: "1. To set aside the impugned order dated 20.09.2019, on I.A.No.4, passed by the VI Additional City Civil and Sessions Judge at Bengaluru CCH No.11 in O.S.No.8874/2014 at Annexure-F and thereby allow the application filed by the Petitioners in I.A.No.4 at Annexure-D. 2. For any other relief/s as this Hon'ble Court deems fit to grant in the facts of circumstance of the case in the interest of Justice and equity." 2. Heard. 3. Sri.C.M.Nagabushana, learned counsel for the petitioners-defendant Nos.5 & 6 submits that respondent Nos.1 to 4 - plaintiffs have filed the suit in O.S.No.8874/2014 on the file of VI Additional City Civil and Sessions Judge, Bengaluru (for short, 'the trial Court') for partition and separate possession and further relief of declaration that defendant Nos.5 to 7 does not derive any right, title and interest of any kind over the portion of the suit schedule property based on the Will dated 23.02.1987. In the said suit, the petitioners have - 4 - HC-KAR NC: 2025:KHC:20632 W.P. No.51446/2019 filed a detailed written statement; specific averment is made at paragraph Nos.10 & 11 that the suit schedule property has been fully developed by the petitioners, formed a layout and sold in favour of certain persons and thereafter khata is standing in the name of purchasers and thereafter buildings have come up. It is further submitted that the petitioners have raised objections with regard to payment of Court fees by respondent Nos.1 to 4-plaintiffs in the suit and requested the trial Court to frame an issue with regard to sufficiency of payment of Court fee and consider the said issue as a preliminary issue. It is also submitted that the trial Court framed the issue with regard to valuation of the suit schedule property and payment of Court fee and considered the said issue as a preliminary issue. While considering the said issue, the petitioners have filed an application in I.A.No.4 under Order XXVI Rule 9 read with Section 151 of CPC seeking for appointment of a Court Commissioner for local investigation to find out and report the existence of buildings in the suit schedule property. It is contended that the said application was moved after recording of the evidence by the trial Court on the preliminary issue as the parties to the proceedings dispute with - 5 - HC-KAR NC: 2025:KHC:20632 W.P. No.51446/2019 regard to the existence of the structures in the suit schedule property. Hence, it is necessary to ascertain the existence of the buildings. It is further contended that this Court has directed the respondent Nos.1 to 4-plaintiffs to file an affidavit with regard to existence of the buildings. Respondent Nos.1 to 4 filed the affidavit, which indicates that the suit schedule property is a vacant agricultural land. When things stood thus, it is very much necessary to appoint a Court Commissioner to find out the truth. It is also contended that the trial Court in the impugned order at paragraph No.15 came to the conclusion that the issue with regard to Court fee can be considered along with other issues and in the said paragraph it has further recorded the finding that the question of paying the Court fee on the basis of market value does not arise and rejected the application for appointment of Court Commissioner. It is also contended that the findings of the trial Court at paragraph No.15 run contrary to each other, in the sense that the trial Court in one breath observes that the issue with regard to payment of Court fee can be considered along with other issues and in another breath it observed that the payment of Court fee on the market value does not arise and rejected the - 6 - HC-KAR NC: 2025:KHC:20632 W.P. No.51446/2019 application. Hence, it is submitted that the matter requires reconsideration by the trial Court as once the trial Court framed an issue on the Court fee and decided the said issue as a preliminary issue, it is required to consider the same and record the finding on the said issue first and a separate order is required to be passed with regard to appointment of Court Commissioner as to whether appointment of Court Commissioner is necessary or not. Without doing so, the trial Court has committed a grave error in passing the impugned order, hence, he seeks to allow the petition by setting aside the impugned order with a further prayer to remand the matter to the trial Court for reconsideration of the application afresh. 4. Sri.K.Vijaya Kumar, learned counsel for respondent Nos.1 to 4-plaintiffs submits that the trial Court has passed a detailed order with regard to the prayer of the petitioners to consider the issue on Court fee at paragraph Nos.14 & 15, the said finding of the trial Court is based on the Full Bench decision of this Court in the case of Venkatesh R.Desai vs. Pushpa Hosmani and others1. He submits that the trial Court 1 [2018 (2) Kar.L.R. 714 (FB)] - 7 - HC-KAR NC: 2025:KHC:20632 W.P. No.51446/2019 can always consider the said issue along with other issues once the trial is commenced and if the trial Court finds that it is necessary to find out the actual aspects, it is always open for the petitioners to move such an application for appointment of the Court Commissioner at the relevant stage. It is submitted that the finding of the trial Court at paragraph No.15 of the impugned order is nothing but the trial Court has deferred the consideration of preliminary issue along with other issues. Hence, he seeks to dismiss the petition. 5. I have heard the arguments of the learned counsel for the petitioners, learned counsel for the respondent Nos.1 to 4 and perused the material available on record. 6. Respondent Nos.1 to 4 have filed O.S.No.8874/2014 seeking the following reliefs: "a) For the relief of partition and separate possession of the Plaintiff's legitimate 1/2 share in the schedule property and to effect partition under section 54 of the CPC and put the Plaintiffs of their legitimate share under Order 20 Rule 12 & 18 of the CPC. b) For the relief of declaration to declare that defendants 5 to 7 does not derive any right, title, interest - 8 - HC-KAR NC: 2025:KHC:20632 W.P. No.51446/2019 of any kind over the portion of schedule property based on the will dated 23.2.1987." 7. In the said suit the petitioners have entered appearance and filed objections. In paragraph No.11 of the objections, the petitioners have made a categorical averment that in the suit schedule property, the petitioners have formed a layout and sold to different persons by executing the registered sale deed and thereafter khata have been changed in favour of the purchasers and the purchasers have put up buildings and in support of the said contention they have produced the photographs. Based on the said contention, the trial Court framed issues on 03.10.2015, issue No.5 reads as under: "5. Whether the valuation of the suit is proper and Court fee paid is sufficient?" 8. The trial Court, considering the aforesaid issue as preliminary issue, has directed the parties to adduce evidence and accordingly, PW-1 & DW-1 have been examined. The matter was posted for hearing on issue No.5 on 11.10.2017, at that time, the petitioners moved an application under Order - 9 - HC-KAR NC: 2025:KHC:20632 W.P. No.51446/2019 XXVI Rule 9 of CPC seeking for appointment of Court Commissioner. The said application was numbered as I.A.No.4. The trial Court heard the parties on the said application and passed the impugned order dated 20.09.2019 by dismissing the application filed by the petitioners. On perusal of the finding of the trial Court in paragraph Nos.14 & 15 of the impugned order, it emerges that the trial Court at paragraph No.15 has recorded the finding that the Court fee is a matter simplicitor, it can be decided along with other issues; further, the trial Court in the said paragraph has recorded the finding that the question of paying Court fee on the basis of the market value does not arise. The said findings of the trial Court in paragraph No.15 runs contrary to each other, at one breath the trial Court is saying that the issue of Court fee can be considered along with other issues by following the Full Bench decision of this Court referred at paragraph No.14 in the said order and in another breath, it has recorded the finding that payment of Court fee based on the market value does not arise and proceeded to reject the application filed seeking for appointment of Court Commissioner. The trial Court in the impugned order has incorrectly recorded the finding that PW-1 in his cross- - 10 - HC-KAR NC: 2025:KHC:20632 W.P. No.51446/2019 examination admitted the existence of buildings, which was factually incorrect. When things stood thus, I am of the considered view that the impugned order is perverse and passed without any correct reasons, which requires to be set aside and the matter requires reconsideration at the hands of the trial Court. It is made clear that the aforesaid observations of this Court shall not come in the way of deciding I.A.No.4 and issue No.5 on their merits. For the aforementioned reasons, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The impugned order dated 20.09.2019 passed on I.A.No.4 by the VI Additional City Civil and Sessions Judge at Bengaluru City in O.S.No.8874/2014 is hereby set aside. iii. The trial Court is directed to reconsider I.A.No.4 filed by the petitioners-defendant Nos.5 & 6 for appointment of Court Commissioner and pass appropriate orders after hearing the parties and thereafter consider the issue No.5 in accordance with law. - 11 - HC-KAR NC: 2025:KHC:20632 W.P. No.51446/2019 iv. The trial Court is directed to consider the said application as expeditiously as possible. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 15