- 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.21465 OF 2021 (GM-CPC) BETWEEN: INSTITUTE FOR MANPOWER PLANNING AND CAREER TRAINING (IMPACT), AN EDUCATIONAL SOCIETY APPROVED BY GOVERNMENT OF KARNATAKA WITH ITS REGISTERED OFFICE AT IMPACT SREE VANI BUILDING 1ST C MAIN ROAD, GANGENAHALLI (GANGANAGAR) BENGALURU 560032 AND ADMINISTRATIVE OFFICE AT IMPACT CAMPUS KODIGEHALLI BENGALURU 560092 REPRESENTED BY ITS DIRECTOR DR. K.P MUTHULLA S/O K.M. PAILY AGE 85 YEARS …PETITIONER (BY SRI. H.N.SHASHIDHARA, SR. COUNSEL A/W SRI.H.S.SUHAS, ADVOCATE) AND: 1 . SRI MOTAPPA S/O LATE JADIGALLAPPA AGED ABOUT 70 YEARS R/A KANNAMANGALA VILLAGE KASABA HOBLI, DEVANAHALLI TALUK 571112 ® - 2 - 2 . SRI. K G RAMACHANDRA RAO S/O LATE GOPALA IYER AGED ABOUT 76 YEARS R/A KANNAMANGALA VILLAGE KASABA HOBLI, DEVANAHALLI TALUK 571112 3 . SRI SHANTHA MURTHY S/O LATE CHIKKA VEERAPPA AGED ABOUT 74 YEARS R/A BASAVA SADANA DEVANAHALLI TOWN DEVANAHALLI TALUK 4 . THE ASSISTANT COMMISSIONER DODDABALLAPURA SUB DIVISION DODDABALLAPURA 560012 5 . THE DEPUTY COMMISSIONER BENGALURU RURAL DISTRICT BENGALURU 560002 6 . THE SECRETARY TO GOVERNMENT DEPARTMETN OF REVENUE KARNATAKA GOVERNMENT SECRETARIAT VIDHANA SOUDHA BENGALURU 560001 7 . THE SUB REGISTRAR DEVANAHALLI 571112 8 . THE TAHSILDAR DEVANAHALLI TALUK 571112 9 . SRI MUNIYAPPA S/O JADIGALLAPPA AGED ABOUT 73 YEARS 10 . SMT NARASAMMA W/O SRI MUNIYAPPA AGED ABOUT 68 YEARS - 3 - 11 . SMT. RATHNAMMA D/O SRI MUNIYAPPA AGED ABOUT 36 YEARS 12 . MS. PARVATHAMMA D/O MUNIYAPPA AGED ABOUT 32 YEARS 13 . SMT. MUNIYAMMA W/O SRI MOTAPPA AGED ABOUT 63 YEARS 14 . SRI. MUNIRAJU s/O SRI MOTAPPA AGED ABOUT 39 YEARS 15 . SMT. RATHNAMMA D/O SRI MOTAPPA AGED ABOUT 37 YEARS 16 . SRI MANJUNATHA S/O MOTAPPA AGED ABOUT 33 YEARS 17 . SMT. GANGAMMA D/O LATE JADIGALLAPPA AGED ABOUT 56 YEARS 18 . SMT. MUNIAKKAIMMA D/O LATE JADIGALLAPPA AGED ABOUT 51 YEARS 19 . SMT. GUNDALAMMA D/O LATE JADIGALLAPPA AGED ABOUT 47 YEARS - 4 - RESPONDENTS NO.9 TO 19 ARE R/AT KANNAMANGALA VILLAGE KASABA HOBLI, DEVANAHALLI TALUK BENGALURU RURAL DISTRICT 571112 20 . SRI . RIYAZULLA KHAN S/O LATE AMANULLA KHAN SINCE DEAD BY HIS LRS 20A) SRI ATISH RIYAZULLA KHAN S/O LATE RIYAZULLA KHAN AGE 40 YEARS 20B) SMT. ANJU M NICHANI W/O LATE SRI RIYAZULLA KHAN AGED ABOUT 53 YEARS BOTH ARE R/A NO.18, HARMONY APARTMENTS, NO.18, PALMGROVE ROAD, VICTORIA LAYOUT, BENGALURU-560 047. 20C) SRI ADA KHAN S/O LATE SRI RIYAZULLA KHAN AGED ABOUT 19 YEARS R/AT NO.18, HARMONY APARTMENTS NO.18, PALMGROVE ROAD, VICTORIA LAYOUT, BENGALURU-560 047. …RESPONDENTS (V/O DT:01.12.2021 NOTICE TO R1 TO R19 IS –D/W; SRI RISHI K.RUIA, ADVOCATE FOR R20 (B AND C); V/O DT:21.08.2025, NOTICE TO R20 (A) – IS H/S) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, 1908, PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD.11.11.2021 O.S.NO.798/2008 VIDE ANNEXURE-A ON IA NO.10 ON THE - 5 - FILE OF THE HONBLE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC DEVANAHALLI AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.09.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER This Writ Petition is filed by the petitioner/plaintiff challenging the order dated 11.11.2021 passed in O.S.No.798/2008, on I.A.No.10 filed under Order XXVI Rule 1 and 4 read with Section 75 of the CPC on the file of Civil Judge (Sr. Dn.) and JMFC, Devanahalli (‘the trial court for short) seeking appointment of Court Commissioner to record further evidence of the PW1 at his residence. 2. The petitioner herein is the plaintiff before the trial Court and the respondents herein are the defendants before the trial Court. - 6 - The Brief facts of the case are that: 3. The plaintiff filed I.A.No.10 under Order XXVI Rules 1 and 4 read with section 75 of the CPC, seeking appointment of Court Commissioner to record further evidence of the PW1 at his residence. In support of the said application, the plaintiff produced medical documents issued by a practitioner, indicating that PW1 required regular echocardiography testing for his cardiac condition. The plaintiff further relied upon the judgment in Dr.M.K. Shyam Sudhir Vs Uddapanda Bopaiah alias Shambu and Another reported in ILR 2000 KAR 3623. 4. The contesting defendant No.20 filed detailed objections opposing I.A.No.10, contending that PW1 had already undergone part cross-examination and appeared to be in good health. It was further argued that appointing a Court Commissioner for recording the cross-examination would deprive the Court of observing PW.1’s demeanor during testimony, thereby prejudicing the defense. - 7 - 5. Upon hearing arguments and perusing the material on record, the trial Court noted that the cross- examination of PW1 had commenced on 25.08.2021. The PW1, a retired Air Force Officer, appeared healthy at the time of both examination-in-chief and part cross- examination. During the cross-examination conducted by the Advocate for defendant No.20, PW1 gave lengthy and irrelevant answers, often avoiding direct responses to specific questions, which led to an adjournment on 25.08.2021. 6. The Court observed that the delay in responses by PW1 was not attributable to old age or ill-health but rather an apparent attempt to choose favorable answers. Consequently, the affidavit in support of I.A.No.10 and the medical documents filed did not inspire confidence. The trial Court found that the application appeared to be an attempt to evade personal appearance after experiencing part cross-examination. Further, the trial Court accepted the contention of defendant No.20 that PW1’s lack of respect towards counsel in Court proceedings would - 8 - render effective cross-examination difficult if conducted at PW1’s residence. 7. In respect of foregoing reasons, the trial Court rejected I.A.No.10, holding that no sufficient grounds were made out for appointing a Court Commissioner to record further evidence. Accordingly, it was ordered that PW1 shall personally appear for further cross-examination, and the matter was posted for continuation of proceedings. 8. It is contended by the learned counsel appearing for the petitioner that the trial Court failed to appreciate the uncontroverted medical evidence and documents establishing that PW1 is an 85 year old retired Air Force Squadron Leader and Director of the petitioner Institution, is suffering from age-related ailments and is physically incapable of prolonged Court attendance. The observations made on PW1’s demeanor and health, based solely on physical appearance, is perverse and contrary to the record, ignoring his fragile condition and inability to endure proceedings at Devanahalli. - 9 - 9. It is also contended that the refusal to appoint a Court Commissioner to record PW1’s further cross- examination, despite the petitioner’s willingness to bear the cost, reflects arbitrary exercise of discretion and non- application of judicial mind. The trial Court’s reasoning is legally untenable, as irrelevant grounds such as the nature of PW1’s deposition cannot justify denial of a lawful procedural safeguard. 10. Heard learned counsel appearing for the parties. 11. On hearing the submissions of the counsel, on perusal of the material on record and on perusal of the impugned order dated 11.11.2021 passed in O.S.No.798/2008, on I.A.No.10 filed under Order XXVI Rule 1 and 4 read with Section 75 of the CPC on the file of Civil Judge (Senior Division) and JMFC, Devanahalli, this Court intends to interfere and set aside the impugned Order of the trial Court and further directs the trial court - 10 - to appoint the advocate Commissioner for conducting of further evidence of PW.1. 12. With the above observation, the Writ Petition is disposed of with following directions: a. The trial Court is directed to appoint the Court Commissioner for conducting the further evidence of PW-1 and also, b. The trial Court to ensure fixing the Court Commissioner fees. c. It is further directed to fix the timelines for recording the evidence and also for filing of the report. d. It is further directed to dispose of the main suit as expeditiously as possible preferably within eight months from the date of receipt of this order. Sd/- (DR. K.MANMADHA RAO) JUDGE BNV