- 1 - NC: 2025:KHC:2612 WP No. 28120 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 28120 OF 2024 (GM-CPC) BETWEEN: 1. MR ABDUL RUB AGED ABOUT 69 YEARS S/O LATE ABDUL RASHEED KOLAR SOMPUR ROAD 1ST CROSS, TIPPU NAGARA RESIDING AT VIJAYAPURA TOWN DEVANAHALLI TALUK 562 135. 2. MR RIZWAN PASHA AGED ABOUT 46 YEARS S/O LATE MOHAMMED YOUSUFF RESIDING AT RAZAQ SAB PALYA BAGALUR POST BENGALURU NORTH TALUK 562 149. MR NAVEED SINCE DEAD BY LRS SMT AYESHA W/O LATE NAVEED SINCE DEAD BY LRS 3. ARSHRIYA TARANNUM AGED ABOUT 30 YEARS D/O LATE NAVEED W/O NAYAZ KHAN RESIDING AT NO. 309, 8TH A CROSS JAKKUR LAYOUT, YELAHANKA BENGALURU - 560 064. Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:2612 WP No. 28120 of 2024 4. SANIYA AGED ABOUT 27 YEARS D/O LATE NAVEED PETITIONER Nos. 3 & 4 ARE R/AT 7TH CROSS HOUSE NO. 114 ISLAM PURA, 30TH DIVISION KARENAHALLI, DODDABALLAPURA 561 203, BENGALURU RURAL DISTRICT. …PETITIONERS (BY SRI. LAKSHMAMMA S B.,ADVOCATE) AND: 1. MR MOHAMMED NAWAZ S/O MOHAMMAD MASTAN AGED ABOUT 49 YEARS 2. MR MOHAMMAD HAFEEZ S/O MOHAMMAD MASTHAN AGED ABOUT 47 YEARS 3. MR MOHAMMAD SALEEM S/O MOHAMMAD MASTHAN AGED ABOUT 31 YEARS 4. MR SUHEL MD S/O MOHAMMAD MASTHAN AGED ABOUT 30 YEARS 5. MR MOHAMMAD MUJAMIL S/O MOHAMMAD MASTAN AGED ABOUT 28 YEARS ALL ARE R/AT RAZAQ SAB PALYA BAGALURU POST BENGALURU NORTH TALUK 562149 …RESPONDENTS (BY SMT. SUSHEELA, SENIOR COUNSEL FOR SRI. RAMESHA T R.,ADVOCATE FOR R1 TO R5) - 3 - NC: 2025:KHC:2612 WP No. 28120 of 2024 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS DATED: 09.09.2024 PASSED BY THE PRINCIPAL CIVIL JUDGE, AND JMFC AT DEVANAHALLI IN OS NO. 135/2012 IN IA NO. 6 AT ANNEXURE-G TO THE WRIT PETITION ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD ORAL ORDER 1. This writ petition under Article 227 of the Constitution of India is filed by the petitioners-plaintiffs challenging the order dated 09.09.2024 passed by the Principal Civil Judge and JMFC, Devanahalli, on I.A.No.VI filed under Order XXVI Rule 9 of CPC in O.S.No.135/2012, whereby the Trial Court has rejected the said application. 2. The plaintiffs filed the suit for permanent injunction and mandatory injunction in respect of the suit schedule properties. On service of suit summons, the defendants have appeared and filed written statement. On the basis of the pleadings of the parties, the Trial Court has framed issues. After completion of trial, the plaintiffs have filed I.A.No.VI under Order XXVI Rule 9 of CPC seeking for appointment of Court Commissioner to commission all the - 4 - NC: 2025:KHC:2612 WP No. 28120 of 2024 suit schedule items as detailed in the plaint, where exactly well and its surrounding vacant place is situated in the suit items. The Trial Court, by impugned order dated 09.09.2024 has rejected the application with cost of Rs.300/-. Being aggrieved, the present petition is filed. 3. The learned counsel for the petitioners-plaintiffs has submitted that the plaintiffs have filed the suit for permanent injunction and mandatory injunction. At the time of evidence, DW-1 has admitted that there was a well in the suit schedule property and later they have denied the same. Therefore, the petitioners have filed an application under Order XXVI Rule 9 of CPC for appointment of Court Commissioner. The Trial Court without giving any reasons has erred in rejecting the application. Hence, he sought for allowing the petition. 4. The learned senior counsel appearing for the respondents-defendants submitted that in the suit, the plaintiffs in the first prayer have sought for permanent - 5 - NC: 2025:KHC:2612 WP No. 28120 of 2024 injunction and in the second prayer, in respect of the very same property, they have sought for mandatory injunction for removing the encroachment made by the defendants. She further contended that the defendants filed the written statement and they have denied the existence of the suit schedule properties. Under the circumstances, Court Commissioner cannot be appointed for conducting inspection in respect of the suit schedule properties. She further contended that now the matter is posted for arguments. At the belated stage, the application under Order XXVI Rule 9 of CPC is filed by the plaintiffs. Hence, the Trial Court has rightly rejected the application. She further contended that in the application, the prayer sought by the plaintiffs is vague. The plaintiffs are not definite about the suit schedule properties. Under the circumstances, the Trial Court has rightly dismissed the application. In support of her arguments, she has relied upon the decision of this Court passed in W.P.No.1168/2023 dated 01.09.2023. - 6 - NC: 2025:KHC:2612 WP No. 28120 of 2024 5. Heard the learned counsel for the parties. Perused the writ papers. 6. The plaintiffs filed the suit seeking for the following releifs: a] For permanent injunction restrain the defendants, their agents, servants, or anybody claiming through them from interfering with the plaintiffs lawful, peaceful joint possession, occupation and enjoyment with respect to ABCDEFGH [as per sketch dotted portion at Document-G] D-schedule agricultural suit property permanently. [b] For mandatory injunction directing the defendants to remove the encroachment made by the defendants, their agents, or anybody claiming them to the joint possession, occupation and enjoyment of ABCDEFGH [as per sketch dotted portion at Document-G] D- schedule agricultural suit property to an extent measuring east to west -40 feet and north to south- 60 feet totally measuring 2400 square feet. [c] And to grant such other reliefs that this Hon'ble Court deems it fit to grant in the fact and circumstances of the suit, including cost to meet the ends of justice. 7. After the evidence of the parties has been concluded, the plaintiffs have filed an application under Order XXVI Rule 9 of CPC seeking for appointment of Court - 7 - NC: 2025:KHC:2612 WP No. 28120 of 2024 Commissioner to commission all the suit schedule items as detailed in the plaint. In the written statement, the defendants have denied the existence of the suit schedule properties. When there is a dispute with regard to existence of the suit schedule properties, the Trial Court has rightly rejected the application filed by the plaintiffs. Unless, the plaintiffs have proved the existence of the suit schedule properties, the appointment of Court Commissioner to examine the suit schedule properties, would not arise. Even the prayer sought by the plaintiffs in the said application is very vague. They have sought for appointment of Court Commissioner to commission all the suit items detailed in the plaint. This Court in W.P.No.1168/2023 in a similar circumstances has rejected the application filed for appointment of Court Commissioner on the ground that plaintiffs are not definite about the suit schedule property and in order to find out the property, a Court Commissioner cannot be appointed. Paragraphs-8 to 10 of the said order passed in W.P.No.1168/2023 reads as under: - 8 - NC: 2025:KHC:2612 WP No. 28120 of 2024 “8. The prayer in the above application is to appoint Commissioner to inspect the suit schedule property to find out its location, boundaries, property numbers of the adjacent properties located on Northern, Southern, Western and Eastern sides, which means the plaintiff is not definite about the suit schedule property. The plaintiff/respondent herein has not sought for appointment of Commissioner to measure the suit schedule property nor there is an allegation of encroachment. The plaintiff has filed an application for appointment of Commissioner to find out the location of the suit schedule property, its boundaries and property numbers of the adjacent properties. In a suit for permanent injunction and possession, if the plaintiff is not definite about her suit schedule property, to find out her property, the Commissioner cannot be appointed. 9. Order XXVI Rule 9 of CPC would permit appointment of Commissioner for local investigation for the purpose of elucidating any matter in dispute directing him to make such investigation and to report thereon to the Court. The decision on which, learned counsel Sri.Paras Jain places reliance i.e. in RAHUL S SHAH (supra) would not assist the respondent. That was a case arising under Order XXI Rule 97 of CPC in an execution proceeding to find out the status of the property. When the possession was not in dispute, the Hon'ble Apex Court observed that appointment of Commissioner could be considered. The other decisions placed on record by the learned- counsel for the respondent/plaintiff, all relate to the case where encroachment was alleged and to find out encroachment, Commissioners were appointed for local inspection and to submit report with regard to encroachment. 10. For the reasons recorded above and in the peculiar facts and circumstances of the present case, I am of the view that the trial Court committed an error in allowing I.A.No.5 filed under Order XXVI Rule 9 of CPC. Hence, the following order: - 9 - NC: 2025:KHC:2612 WP No. 28120 of 2024 The impugned order dated 02.01.2023 on I.A.No.5 filed under Order XXVI Rule 9 of CPC in O.S.No.2306/2022 on the file of XVII Additional City Civil and Sessions Judge, Bangalore is set aside. I.A.No.5 stands rejected.” 8. In view of the above, this Court is of the opinion that the Trial Court has adopted right approach to the real state of affairs and there is no error committed by the Trial Court. No good grounds are made out to exercise the supervisory jurisdiction vested under Article 227 of the Constitution of India. There is no merit in the writ petition. 9. Accordingly, the writ petition is dismissed. Sd/- (H.T. NARENDRA PRASAD) JUDGE DM List No.: 1 Sl No.: 46