- 1 - NC: 2025:KHC-D:5038 WP No. 102509 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO. 102509 OF 2022 (GM-CPC) BETWEEN: SHRI. CHANDRAKANT BABURAO PATIL AGE. 82 YEARS, OCC. MEDICAL PROFESSION, R/O.SHAMANEWADI, TQ.CHIKKODI, BELAGAVI-591 201. …PETITIONER (BY SRI. ABHILASH HANAMANNAVAR., ADVOCATE FOR SRI. SHREEVATSA HEGDE., ADVOCATE) AND: SHRI. JIVANDHAR KESHAV NASALAPURE, AGE.65 YEARS, OCC.AGRICULUTRE, R/O.SHAMANEWADI, TQ.CHIKKODI, BELAGAVI-591 201. …RESPONDENT (BY MISS. SONU SUHEL.N., ADVOCATE FOR SRI. SHARAD.V.MAGADUM., ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS. THIS WRIT PETITION IS LISTED FOR DICTATING ORDERS, THIS DAY, AN ORDER IS MADE AS UNDER: Digitally signed by PREMCHANDRA M R Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:5038 WP No. 102509 of 2022 ORAL ORDER Sri.Abhilash Hanamannavar., counsel on behalf of Sri.Shreevatsa Hegde., for the petitioner and Miss.Sonu Suhel., counsel on behalf of Sri.Sharad V.Magadum., counsel for the respondent have appeared in person. 2. The captioned Writ Petition is filed seeking a Writ of certiorari to quash the impugned order dated: 18.02.2022 passed by the I Addl. Civil Judge and JMFC, Chikkodi on I.A.No.VI in O.S.No.218/2015 vide Annexure-A. 3. For convenience, the parties shall be referred to based on their status and ranking before the Trial Court. 4. The plaintiff filed a suit for a declaration that he has acquired the right of way by prescription regarding the suit property described as a ‘road passage’ measuring 120 feet in length south-north and 33 feet in width on the northern end and 16.5 feet in width on the southern end. A relief of injunction was also sought. Injunction for the removal of the encroached portion and perpetual injunction was also sought. The plaintiff applied for a temporary injunction and the same was rejected. - 3 - NC: 2025:KHC-D:5038 WP No. 102509 of 2022 As things stood thus, after three years, the plaintiff filed an application under Order XXVI Rule 9 of CPC in I.A.No.VI and prayed for a local investigation to be made by the Court Commissioner. The defendant contested the application. The Trial Court vide order dated 18.02.2022, allowed the application. Under these circumstances, the petitioner is before this Court. 5. Counsel for the respective parties urged several contentions. 6. Counsel for the petitioner to substantiate his contentions, has placed reliance on the following decision: 1. MISS RENUKA V/S SRI.TAMMANNA AND OTHERS IN W.P.NO.656/2006 DISPOSED OF ON 01.06.2007. 7. Heard the arguments and perused the writ papers with care. 8. The issue falls on a narrow compass and relates to the allowing of the application for a local investigation. Order XXVI Rule 9 of CPC, empowers the Court to issue a commission to make a local investigation, which may be required for - 4 - NC: 2025:KHC-D:5038 WP No. 102509 of 2022 elucidating any matter in dispute. The Court can issue local commission suo motu, if, in the facts and circumstances of the case, it is deemed necessary that a local investigation is required and is proper for elucidating any matter in dispute. 9. The purpose of appointing a commissioner for local investigation of the spot is not to help the party to establish a case. It is needless to state that the object of Order XXVI Rule 9 is not to assist the party in collecting evidence. No doubt, an application can be filed at any stage of the proceedings, but it would be better if a commissioner for local investigation is appointed only after the parties have led the evidence. Reverting to the facts of the case, the evidence was not yet completed, hence, there was no question of ambiguity. After the completion of the evidence, if there is any ambiguity in the evidence then, the Court may appoint a commissioner for the clarification of ambiguity. However, such a circumstance is absent in the present case. Furthermore, the conclusion that the court commissioner’s report is subject to scrutiny and is not conclusive is also untenable in law. It is a settled position of law that the Court Commissioner cannot be appointed to collect - 5 - NC: 2025:KHC-D:5038 WP No. 102509 of 2022 evidence in support of a claim. If a commissioner is issued for local investigation, the same would amount to a collection of evidence. The issue of commission and the power of appointing the Court Commissioner for local investigation is a matter of judicial discretion and it should be exercised so that a final and just decision is rendered in the case. The Trial Court has not exercised the power in the right perspective. 10. For the reasons stated above, the order passed by the Trial Court on I.A.No.VI is liable to be quashed. Accordingly, it is quashed. Counsel for the petitioner has cited a case referred to supra, but I do not think that the law is in doubt. Each decision turns on its facts. The present case is also tested in light of the aforesaid order. 11. The Writ of Certiorari is ordered. The order dated: 18.02.2022 passed by the I Addl. Civil Judge and JMFC, Chikkodi on I.A.No.VI in O.S.No.218/2015 vide Annexure-A is quashed. - 6 - NC: 2025:KHC-D:5038 WP No. 102509 of 2022 12. Resultantly, the Writ petition is allowed. Sd/- (JYOTI MULIMANI) JUDGE CLK List No.: 2 Sl No.: 40