- 1 - NC: 2025:KHC-D:3818 WP No. 100703 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.100703 OF 2025 (GM-CPC) BETWEEN: 1. SIDDAPPA S/O YAMANAPPA CHIGARADDI AGE. 65 YEARS, OCC. AGRICULTURE, R/O. LAXANATTI, TQ. MUDHOL, DIST. BAGALKOT-587311. 2. LOKANNA S/O YAMANAPPA CHIGARADDI AGE. 63 YEARS, OCC. AGRICULTURE, R/O. LAXANATTI, TQ. MUDHOL, DIST. BAGALKOT- 587311. SENIOR CITIZEN BENEFIT NOT CLAIMED …PETITIONERS (BY SRI GIRISH A. YADAWAD, ADVOCATE) AND: YAMANAPPA S/O HANAMAPPA SHASHANNAVAR AGE. 47 YEARS, OCC. AGRICULTURE, R/O. OPP. AXAY PETROL PUMP, BAGALKOT BELAGAVI ROAD, LAXANATTI, TQ. MUDHOL, DIST. BAGALKOT-587311. …RESPONDENT (NOTICE TO RESPONDENT IS DISPENSED WITH VIDE ORDER 25.02.2025) THIS WP IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA, 1950, PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 22.07.2024 PASSED BY THE ADDL. CIVIL JUDGE AND JMFC, MUDHOL IN OS NO.154/2016 VIDE ANNEXURE-C, IN THE INTEREST OF JUSTICE AND EQUITY. R ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.28 12:41:34 +0530 - 2 - NC: 2025:KHC-D:3818 WP No. 100703 of 2025 THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. Notice to respondent is dispensed with in view of the proposed order to be passed. 2. The petitioners are before this Court seeking for the following reliefs: “Issue a writ of certiorari to quash the impugned order dated 22.07.2024 passed by the Addl. Civil Judge and JMFC, Mudhol in OS No.154/2016 vide Annexure-C, in the interest of justice and equity.” 3. The petitioners had filed a suit in O.S.No.154 of 2016 before the Principal Civil Judge and JMFC., Mudhol for possession against the defendant therein on the ground that the defendant had encroached upon a portion of the property belonging to the petitioners. In the said suit, written statement having been filed, issues were framed, evidence was led by both the parties, the witness cross-examined the parties and the matter was posted for judgement. At that stage, - 3 - NC: 2025:KHC-D:3818 WP No. 100703 of 2025 on 22.07.2024, the trial Court passed the following order: “While perusing the records of the case and preparing for the judgment this court finds necessary to appoint court commissioner for local investigation of suit properties for the purpose of better appreciation of evidence and effective adjudication of the dispute completely.” 4. Subsequent thereto, the PDO of Laxanatti village Panchayat is appointed as a Court Commissioner to submit the report. The report according to the petitioner has still not been filed. Challenging the order appointing the Court Commissioner, the petitioner is before this Court seeking for aforesaid reliefs. 5. The submission of Sri Girish A.Yadwad., learned counsel appearing for the petitioners is that once the matter had been posted for judgement, the question of appointment of Court Commissioner, would not arise that would amount to reopening of the stage of the case. In this regard, he relies upon the decision of of this Court in the case of Rabiya Bi Kassim M v. Country Wide Consumer Financial Service Lltd., reported in AIR OnLine 2004 KAR 2, more - 4 - NC: 2025:KHC-D:3818 WP No. 100703 of 2025 particularly para 9 thereof, which is reproduced hereunder for easy reference. “9. On consideration, we are of the opinion that once the matter has been finally heard and posted for judgment, as held by the Supreme Court in Arjun Singh's case (supra) nothing is required to be done by the Court except to pronounce the judgment, and therefore the decision in Laxminarayan Enterprises case is not helpful. Admittedly, Clause (4) of Order 18 Rule 2, of CPC has been deleted and therefore the respondent- plaintiff cannot take advantage of Laxmin Arayan's case in the facts of the given case. Even if we assume it for the sake of argument without accepting, in view of the amendment in CPC, as we find, the law relating to procedure in suits and civil proceedings are governed by CPC. The CPC has been amended from time to time. Recently also, in order to cut short the delays at various levels in disposal of civil cases, CPC was amended by the Amendment Act of 1999 with effect from 1.7,2002. In the facts of the given case, sufficient opportunity was given to the plaintiff to complete his evidence, but he has not availed the opportunity at appropriate time and thereafter his evidence was closed. The case was fixed for defendant's evidence and ultimately the case was heard and reserved for judgment on 20.6.2001. In our view, if the matter is reserved for pronouncement of judgment, such an application is not maintainable as otherwise it will defeat the very object of amendment in speedy disposal of the cases.” 6. His submission is that the object of amendment to the CPC in the year 1999 is to speed up the proceedings. Thus, once a case is reserved for pronouncement of - 5 - NC: 2025:KHC-D:3818 WP No. 100703 of 2025 judgement, an application for recall of a stage would not be maintainable. 7. Heard Sri Girish A.Yadawad., learned counsel appearing for the petitioners and perused the papers. 8. Firstly, the decision in Rabiya Bi Kassim M’s case (supra), in my considered opinion, would not be applicable since that was a case when the matter was posted for judgement, the plaintiffs had filed an application for recalling of the stage to lead evidence. 9. This is a case where the Court was of the opinion that a Commissioner was required to be appointed to carryout local inspection of the properties and submit a report for better appreciation of the evidence and effective adjudication on the dispute. The Order XXVI rule 9 of Code of Civil Procedure (for short ‘CPC’) is reproduced hereunder for easy reference: “9. Commissions to make local investigations.—In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profit or damages or annual net profits, the Court may issue a commission to - 6 - NC: 2025:KHC-D:3818 WP No. 100703 of 2025 such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State government has made rules as to the persons to whom such commission shall issued, the Court shall be bound by such rules.” 10. A perusal of a reading of the said provision would indicate that in any suit where the Court determines a local investigation to be requisite, then such a local Commissioner could be appointed by the Court appointing a Commissioner. The fact that the words used are “the Court deems a local investigation to be requisite or proper”, gives ample discretion to the Court to decide whether a Court Commissioner is to be appointed or not. This power of the Court is not restricted by any application to be filed by any of the parties but, it is sufficient if the Court deems fit that would mean that even suo-moto power under Rule (9) Order XXVI of CPC can be exercised. 11. In the present case, the matter having been posted for judgement. The trial Court in its’ abundant discretion having come to a conclusion that the Court finds it necessary to appoint a Court Commissioner for local - 7 - NC: 2025:KHC-D:3818 WP No. 100703 of 2025 investigation of suit properties for the purpose of better appreciation of evidence, no fault can be found therewith. 12. Under Rule (9) Order XXVI of CPC a commissioner can be appointed at the discretion of the court suo motto and merely because such a court commissioner is appointed after the matter is reserved for judgement would not make such appointment bad in law. 13. No grounds being made out, the petition stands dismissed. Sd/- (SURAJ GOVINDARAJ) JUDGE AM CT:GSM List No.: 1 Sl No.: 9