- 1 - HC-KAR NC: 2025:KHC:27754 WP No. 4631 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 4631 OF 2020 (GM-CPC) BETWEEN: 1. SRI. H. T. RAVISH S/O THAMMAIAH AGED ABOUT 38 YEARS, 2. SMT. KEERTHI K S W/O SRI H.T. RAVISH, AGED ABOUT 32 YEARS, BOTH ARE RESIDING AT NO.45, SOMESHWARA NILAYA FLOWER GARDEN, NANJAMMA LAYOUT, DEVASANDRA MAIN ROAD, KRISHNARAJAPURAM, BENGALURU - 560 036. …PETITIONERS (BY SRI. YESHU BABA R MISTHRA, ADVOCATE) AND: SRI. T. VENKATESH S/O LATE CHIKKATHIMMASETTY AGED ABOUT 54 YEARS, RESIDING AT NO.17, 4TH CROSS, DEVASANDRA MAIN ROAD, KRISHNARAJAPURAM BENGALURU - 560 036. …RESPONDENT (VIDE ORDER DATED 22.07.25, SERVICE OF NOTICE TO RESPONDENT IS HELD SUFFICIENT) Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:27754 WP No. 4631 of 2020 THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 10.01.2020 ON I.A.NO.III IN O.S.NO.864/2016 AT ANNX-A AND CONSEQUENTIALLY ALLOW THE APPLICATION FILED BY THE PETITIONERS U/O 26 RULE 9 R/W SEC. 151 OF CPC, 1908 ON THE FILE OF THE LXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-66) AND ETC., THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated 10.01.2020, passed in I.A.No.3 in O.S.No.8641/2016. 2. Heard. 3. Learned counsel for the petitioners submits that the petitioners/plaintiffs have filed an application for the appointment of Court Commissioner on the ground that the defendant in the suit has constructed the compound by encroaching the petitioners’ property. However, the Trial Court rejected the said application on the ground that the said application is premature. It is submitted that now the matter is at the stage of trial and the petitioners may be permitted to file an application for appointment of Court Commissioner if need - 3 - HC-KAR NC: 2025:KHC:27754 WP No. 4631 of 2020 arises after completion of trial. Hence, he seeks to dispose of the petition. 4. Though the notice is served on the respondent, he remained absent. 5. I have heard the arguments of learned counsel for the petitioners. Perused the material available on record meticulously. I have given my anxious consideration to the submissions made by learned counsel for the petitioners. 6. The pleading and the material on record indicates that the petitioners filed O.S.No.8641/2016 for the relief of permanent injunction against the respondent/defendant herein. The defendant entered appearance and filed objections denying the averments made in the plaint more particularly with regard to the encroachment as contended by the petitioners. 7. To substantiate the said assertions, plaintiff filed an application under Order XXVI Rule 9 seeking for appointment of the Court Commissioner to measure the property of the plaintiffs as well as the property of the defendant to find out - 4 - HC-KAR NC: 2025:KHC:27754 WP No. 4631 of 2020 the assertion of the parties. The Trial Court after considering the decision of this Court, has rejected the application. 8. In my considered view, rejection of the application by the Trial Court on the ground that the appointment of the Court Commissioner will lead to collection of evidence is incorrect. However, the application is required to be rejected solely on the ground that application is filed prematurely even before the conclusion of the trial. 9. It is trite law that the application for appointment of Court Commissioner can be filed generally after conclusion of the trial only if there is an ambiguity in the evidence on record with regard to assertion made by the parties to the proceedings. This Court in the case of Sri Shadaksharappa v. Kumari Vijayalaxmi1 held that the application for appointment of the Court Commissioner can be filed after conclusion of the trial and before the arguments. 10. In the instant case, petitioners are specifically asserting that other side has encroached the property and 1 LAWS(KAR)-2023-1-1129 - 5 - HC-KAR NC: 2025:KHC:27754 WP No. 4631 of 2020 claims the right over the property and possession and said factum is primarily required to be proved by the petitioners by way of adducing oral as well as documentary evidence and if need arises, they can seek appointment of the Court Commissioner after trial. Hence, I am of the considered view that interest of justice would be met, if this writ petition is disposed of by permitting the petitioners to file an application after recording of the evidence. For the aforementioned reasons, I proceed to pass the following: ORDER i. Writ petition is disposed off with a liberty to the petitioners to file an application for appointment of the Court Commissioner if need arises. ii. After conclusion of the trial, the Trial Court shall consider such application on its merits in accordance with law. Sd/- (VIJAYKUMAR A. PATIL) JUDGE KAV List No.: 1 Sl No.: 13/CT: BHK