- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO.5300 OF 2021 (GM-CPC) BETWEEN: 1 . SRI KUMAR AGED ABOUT 45 YEARS 2 . SRI LAKSHMANA AGED ABOUT 58 YEARS 3 . SRI DARMA AGED ABOUT 39 YEARS 4 . SMT. PUTTAMMA AGED ABOUT 60 YEARS PETITIONERS NO.1 TO 3 ARE THE CHILDREN AND PETITIONER NO.4 IS THE WIFE OF LATE SRI CHAMUNDAIAH ALL ARE RESIDING AT SY. NO.64, JWALA MUKHI AND NITIN WATER WORKS OPP. HOYSALA PETROL BUNK YELETHOTA JLB ROAD CHAMUNDIPURAM MYSORE 570 008 …PETITIONERS (BY SRI. SUBHASH S., ADVOCATE) - 2 - AND: SRI PRAKASH BABU AGED ABOUT 60 YEARS S/O SRI GURUNATHA RAO R/AT NO.12, HIMAYATNAGAR, HYDERABAD-560 029. OFFICE AT SYLVAN GREENS PROJECT YELETHOTA JLB ROAD CHAMUNDIPURAM MYSORE-570 008. …RESPONDENT (BY SRI. RAMU S., ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDERS DATED 06.11.2020 PASSED ON I.A.NO.7 APPOINTMENT OF THE GOVERNMENT LOCAL SURVEYOR IN O.S.NO.504/2020 ON THE FILE OF II ADDL. FIRST CIVIL JUDGE AT J.M.F.C, MYSORE, VIDE ANNEXURE-E AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 16.09.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER 1. The present writ petition is filed seeking to set aside the Order dated 06.11.2020 passed on I.A.No.VII filed for appointment of the Government/ Local Surveyor in O.S.No.504/2020, on the file of - 3 - II Addl. First Civil Judge and JMFC at Mysuru (‘the Trial Court’ for short). 2. The petitioners herein are the defendants before the Trial Court and the respondents herein are the plaintiffs before the Trial Court. 3. The suit was filed by the plaintiff against the defendants for bare injunction. The defendants were placed ex-parte by the Trial Court. The plaintiff has admitted that the suit schedule property was in possession of the defendants/petitioners herein and has alleged that the defendants are making construction. Hence, the plaintiff filed I.A.No.VII for appointment of a Court Commissioner under Order XXVI Rule 9 of CPC. 4. The brief facts of the case are that:- One Sri.Chamundaiah was granted occupancy rights over 4 guntas of land in Sy.No.64/1 (old Sy.No.4) by the Tahsildar, Land Reforms, Mysore Taluk, under a grant certificate dated 01.01.1982 - 4 - (hereinafter “schedule property”). He had two wives, three sons through his first wife and one son through his second wife, and resided in a house situated to the south of the schedule property. 5. Upon his demise on 15.05.1991, an oral partition took place among his legal heirs, under which petitioners No.1 to 3 (children of the first wife) received 2 guntas, while the petitioner No.4 received 2 guntas as share of her branch. The petitioners No.1 to 3 constructed independent dwelling units in their share, while the petitioner No.4 dug up two borewells in the eastern side of her property and had availed electricity connection. The existing house of the petitioner No.4 was dilapidated. Hence, she demolished and reconstructed a new deluxe house, the construction of which progressed without objection until completion, save for plastering and painting. Thereafter, the respondent herein/plaintiff instituted O.S.No.504/2020 before the Trial Court alleging as under:- - 5 - i) the suit Schedule Property bearing Sy No.65 and 6 measuring 7 Acres and 36 Guntas was purchased by him and his friends (described as item No.1 in the Plaint Schedule) ii) towards western side Le, south western side of item No.1 of the suit Schedule Property there are two small ACC sheet shed with some vacant space for storing agricultural implements. ⅲ) the above said shed and vacant space was not being used by the Plaintiffs for any purpose. iv) the Defendants (Petitioners) approached the Plaintiff to permit them to use the shed and the vacant space for storing agricultural implements and in return agreed to look after the land without any remuneration because the Defendants have some land adjoining the Plaintiff's property. v) the Plaintiff and his friends gave oral permission to the Defendants to make use of the said place till the formation of layout and they should vacate after the formation of the layout, to which the Defendants had agreed. vi) the Defendants have continued to be in possession even after the formation of the layout. vii) in the month of January 2020, the Plaintiff demanded the Defendants to vacate the shed and the vacant space to which they agreed and the Plaintiff left for Hyderabad for his work but because of pandemic he could not return to Mysuru immediately after his work got over. - 6 - viii) when he returned from Hyderabad in July, 2020. he found that the Defendants were making illegal and unlawful construction in the vacant site adjoining the shed without taking permission from him and or his friends. When enquired the Petitioners have give evasive replies and threatened to make galata and that when he (Plaintiff) approached the jurisdictional police they did not come forward to help. ix) the Plaintiff has now approached the Court to prevent further construction in the suit Schedule Property grant permanent injunction. The copy of the Plaint is produced herewith as Annexure-'A' 6. The Trial Court observed that the plaintiff filed I.A.No.VII on 19.09.2020 under Order XXVI Rule 9 read with Section 151 CPC seeking appointment of a Government or Local Surveyor to measure both the suit schedule and written statement schedule properties. It was contended that though a temporary injunction was granted in respect of suit item No.2, the defendants, despite knowledge that their land is situated in Sy.No.64/1, were raising construction in Sy.No.65[P] adjoining the plaintiff’s property, thereby - 7 - necessitating a survey to ascertain the exact location of construction. 7. On the other hand the defendants filed objections contending that the application is not maintainable in law or on facts, as the appointment of a commissioner amounts to collection of evidence. They asserted that defendant No.4 had already completed construction in the Southern portion of the written statement ‘B’ schedule property which belongs exclusively to her, supported by photographs dated 19.08.2020 and other materials, thereby rendering the request for a local investigation redundant. 8. Upon considering the rival pleadings, the Trial Court held that the central issue relates to identification of the property where defendant No.4 has constructed the house, as the title documents produced by either side do not establish the location of construction. Invoking Order XXVI Rule 9 of the CPC, the Trial Court found a local investigation is necessary to elucidate the dispute and accordingly allowed - 8 - I.A.No.VII, holding that the plaintiff had made out sufficient grounds for appointment of a Commissioner. 9. It is contended by the learned counsel appearing for the petitioners that the settled position of law, as held in the case of Miss Renuke vs. Tammanna & Ors., ILR 2007 Kar 3029 (para 7), is that a Court Commissioner cannot be appointed to collect evidence, and such appointment is permissible only after completion of evidence by both parties where ambiguity remains to be clarified. 10. In the present case, the evidence of either side has not even commenced, and without applying its mind to the pleadings or permitting the parties to discharge their burden by adducing oral and documentary evidence, the Trial Court has erroneously resorted to appointment of a Commissioner at the threshold stage. 11. It is further contended that the haste with which the plaintiff has sought for such appointment clearly - 9 - demonstrates an attempt to fill lacunae and collect evidence through the Court Commissioner, which is impermissible in law. In a suit for bare injunction, the plaintiff, having admitted that the defendants are in possession and have raised construction, is bound to prove possession independently through evidence, failing which the claim itself is not maintainable. 12. Heard learned counsel appearing on either side. 13. In support the contentions, learned counsel for the petitioners has placed reliance on the following judgments:- • B. Jagannath v. N.C.Narayanappa and another reported in AIR 1982 KAR 233 4. If the dispute relates to the accuracy of the sketch filed along with the suit, the need for appointment of a Commr. will arise only after parties have adduced evidence in regard to matters in issue in the suit. Under R.9 of 0.26 of C.P.C.. power is conferred on the Court for appointment of a Commissioner for local inspection in order to better appreciate the evidence which is already on record. Only when the parties agree that a report of the - 10 - Commissioner so appointed to discover the existence or non-existence of a fact will bind both the parties that the Court shall appoint a Commissioner. There are authorities to support this view. In similar cases, I have already taken the view that the power exercised by the Court under 0.26, R.9 is discretionary and just because that discretionary power is not exercised by the court below, this Court cannot interfere under S.115 of the C.P.C. • Maroli Achuthan v. Kunhipathumma reported in AIR 1968 KER 28; 8. The object of local investigation under Order 26, Rule 9. C.P.C. as stated in Amulya Kumar v. Annada Charan. AIR 1933 Cal 475 is not so much to collect evidence which can be taken in court but to obtain evidence which from its very peculiar nature can only be had at the spot. Order 26. Rule 9. C.P.C. invests the court with a discretion in passing an order for the issue of a commission and does not provide for the presence of both parties when an order for the issue of commission is passed. There may be cases where the object of the issue of commission itself will be lost by ordering notice to the defendant before passing the order for the issue of commission. In emergent cases it is necessary for the court to pass an order issuing - 11 - commission without ordering notice to the defendant also. An order for the issue of a commission for local investigation without issue of notice under Order 26. Rule 9, cannot he characterised us without jurisdiction. That this is the only possible view is also clear from the wording of Order 26. Rule 18, C.P.C. which insists on notice to the parties to appear in person or by their agents or pleader in the property at the time of investigation. Notice to the parties is made compulsory only before the investigation is done by the Commissioner If necessary we are prepared to hold that under Order 26. Rule 9. It is open to the Court to pass an ex parte order for the issue of a commission for investigation even before the defendant has entered appearance. • Miss Renuka v. Sri Tammanna and Others reported in ILR 2007 KAR 3029; 7. It is settled position of law that Court Commissioner cannot be appointed to collect evidence in support of a claim. After completion of evidence on both the sides, if it is found that there is any ambiguity in the evidence adduced by the parties, then the Court may appoint a Commissioner for the purpose of clarification of such an ambiguity. In the instant case the - 12 - evidence is not yet commenced and therefore the question of ambiguity in the evidence will not arise at this stage. The Trial Court without considering the settled position of law committed an error in passing the impugned order appointing a Court Commissioner. On this ground the impugned order is liable to be quashed. • Philomina Aranha v. B.K.Bhojraj by order dated 31.08.2010 passed in W.P.No.34679/2009 (GM-CPC) “It is settled position of law that Court- Commissioner cannot be appointed to collect evidence in support of a claim. After completion of evidence on both the sides, if it is found that there is any ambiguity in the evidence adduced by the parties, then the Court may appoint a Commissioner for the purpose of clarification of such an ambiguity. In the instant case the evidence is not yet commenced and therefore the question of ambiguity in the evidence will not arise at this stage. The Trial Court without considering the settled position of law committed an error in passing the impugned order appointing a Court Commissioner. On this ground the impugned order is liable to be quashed. - 13 - 14. The learned counsel appearing for the respondent has placed reliance on the following judgments:- • K.M.Pathrose v. Smt. Tejaswini by order dated 24.06.2019 passed in W.P.Noo.25175/2019 (GM-CPC); 5. Merely because the Court Commissioner is appointed in violation of long line of decisions; is no good ground for indulgence of the writ Court, especially when it is open to the petitioner to participate in the task which the Court Commissioner is asked to perform; this apart, is open to the petitioner to object to the Court Commissioner's report in the making if there are grounds for the same. However, the petitioner need not have the apprehension that the Court Commissioner would be expressing his opinion as to who is in the possession of the subject property, because it is more or less a settled legal position that Court Commissioner shall not undertake that exercise. In the above circumstances, no indulgence is warranted in this matter by this Court and accordingly, the writ petition stands disposed off. It is needless to mention that the Court Commissioner shall commence his exercise after - 14 - receiving the Memo of Instructions from the stakeholders. • Sri Shadaksharappa v. Kumari Vijayalaxmi and others by order dated 24.01.2023 passed in W.P.No.201274/2022 (GM-CPC) In the judgment of M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit v. Modi Transport Service referred supra, the Apex court has held that the court has wide discretion under Order XXVI Rule 9 of the Code to appoint the Commissioner. The relevant portion of paragraph 35 of the said judgment is extracted here. "35. XXX Order XXVI Rule 9 of the Code gives wide powers to the court to appoint a Commissioner to make local investigations which may be requisite or proper for elucidating any matter in dispute, ascertaining the market value of any property, an account of mesne profit or damages or annual net profits. xxx" (emphasis supplied) This being the position, the application for appointment of Commissioner cannot be rejected on the premise it amounts to collection of evidence or on the premise that it is not permissible looking into the form of the suit. If the Court deems it fit that the report is - 15 - necessary to elucidate the matter in dispute then the application for local inspection has to be allowed. 20(e) The Commissioner can be appointed either before or after the commencement of the trial. However having due regard to the nature of the controversy, if the report is essential for elucidating the matter in dispute, it is desirable to have the local inspection before the commencement of trial as it is likely to reduce the volume of oral evidence in a given case. 15. On hearing the submissions of the learned counsels for both the parties, on perusal of the material placed on record and on perusal of the impugned order of the Trial Court, this Court is of the opinion that a Commissioner can be appointed to note down the existence of physical features. Therefore, it would be suffice to rely upon a short noted judgment of this Court in O.D. Harry v. G. Krishna reported in 1983 (1) ALT (NRC) 29, it was held thus: - 16 - “The Court has got ample power for appointing a Commissioner to make local investigation and to note the peculiar physical features of the suit property which the party seeks to rely upon at trial in support of his case for seeking a perpetual injunction. In this case the lower Court has confined the scope of enquiry by the Commissioner to note down the existence of the physical features of the suit property and to submit a report. This is amply supported by a combined reading of Order XXVI Rule 9 and Order XXXIX Rule 7 CPC.” 16. On hearing the submissions of the learned counsel, on perusal of the material on record and on perusal of the impugned order dated 06.11.2020 on the file of the II Additional First Civil Judge, Mysuru on I.A.No.VII in O.S.No.504/2020, it is observed that the Trial Court has passed a well reasoned order and no need to interfere in this order. There are no merits to interfere in this writ petition. Hence, the writ petition is dismissed. Sd/- (DR.K.MANMADHA RAO) JUDGE GH