- 1 - NC: 2025:KHC:1361 WP No. 52202 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 52202 OF 2019 (GM-CPC) BETWEEN: SHRI T S NIRANJAN S/O LATE SHRI SIDDAPPA AGED ABOUT 61 YEARS R/A SIDDA SOUDHA MUNICIPAL LAYOUT SIDDA GANGA EXTENSION TUMKUR-572102 CARRYING ON THE BUSINESS IN THE NAME AND STYLE OF M/S NIRAJAN TRADING CO II MAIN ROAD, NEW MANDIPET TUMKURU-572102. …PETITIONER (BY SRI. PRADEEP KUMAR R.H., ADVOCATE) AND: M/S VINAYAKA ASSOCIATES REPRESENTED BY ITS PROPRIETOR SHRI M N SHIVA PRASAD "KHADI COMPLEX" INDUSTRIAL ESTATE B H ROAD, TUMKURU-572102. …RESPONDENT (BY SRI.T. SUBRAMANYA, ADVOCATE) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-SET ASIDE THE IMPUGNED ORDER DATED 14.10.2019 PASSED BY THE Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1361 WP No. 52202 of 2019 LEARNED II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMKURU IN O.S.NO.422/2014 ON THE APPLICATION FILED BY THE O.S.NO.422/2014 ON THE APPLICATION FILED BY THE PETITIONER UNDER ORDER-26 RULE 9 OF THE CPC VIDE ANNEXURE-A AND ALLOW THE SAID APPLICATION FILED BY THE PETITIONER UNDER ORDER 26 RULE 9 OF THE CPC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD ORAL ORDER This petitioner is the defendant in O.S.No.422/2014 on the file of the II Additional Senior Civil Judge and JMFC, Tumakuru [for short, 'the civil Court']. The civil Court by the impugned order dated 14.10.2019 has rejected the petitioner's application under Order XXVI Rule 9 of the Code of Civil Procedure [CPC]. The petitioner has filed this application for appointment of a Technical personnel as a Court Commissioner to visit his land to inspect the High-tech Poly House constructed by the - 3 - NC: 2025:KHC:1361 WP No. 52202 of 2019 respondent and to file a report on the quality of the construction. 2. The civil Court has rejected this application opining that the respondent has admittedly executed the construction of High-tech House in the year 2012 and that present dispute is over the alleged short payment by the petitioner. The civil Court has also opined that if the concerned from the Department of Horticulture, because such construction is under a Scheme, has recorded satisfaction with the construction of the High-tech Poly House, the appointment of a Technical personnel would serve no purpose. 3. Sri Pradeep Kumar R.H., the learned counsel for the petitioner, and Sri T. Subramanya, the learned counsel for the respondent, are heard and the records are perused. The respondent has filed this suit in O.S.No.422/2014 for recovery of Rs.12,17,713/- essentially contending that the - 4 - NC: 2025:KHC:1361 WP No. 52202 of 2019 petitioner has paid only a sum of Rs.2,00,000/- as against the total invoice amount and therefore he is liable to pay the balance amount with interest. The petitioner has filed written statement contending that he has engaged the respondent’s services to construct High-tech Poly House to grow capsicum, but the respondent has used substandard material to construct the Poly House. The petitioner’s application for appointment of Commissioner is filed to validate this defense. 4. This Court must opine that given the nature of the construction [a Poly House which irrefutably requires maintenance and is temporary in nature] and the lapse of time viz more than 10 years from the institution of the suit, the application is rendered infructuous and therefore, there cannot be any interference with the impugned order. However, disposal of the petition in such terms cannot foreclose any measure that would be available to the - 5 - NC: 2025:KHC:1361 WP No. 52202 of 2019 petitioner in law, including filing an application for summoning the competent witnesses, to vindicate his case, and nor can the petitioner be prejudiced by the civil Court’s observation in the impugned order. The petition stands disposed of accordingly. SD/- (B M SHYAM PRASAD) JUDGE SA ct:sr