- 1 - HC-KAR NC: 2025:KHC-D:9953 WP No. 104257 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 104257 OF 2025 (GM-CPC) BETWEEN: SRI. NAVEEN S/O. UMESH KAMATH, AGE: 47 YEARS, OCC. BUSINESS, R/O. BEACH ROAD, MAVALLI-2 VILLAGE, MURDESHWAR, TQ. BHATKAL, DIST. UTTAR KANNDA-581353. …PETITIONER (BY SRIYUTHS. VYAS DESAI, ADVOCATE FOR HAREESHA S. NAYAK, ADVOCATE) AND: THE JANATA CO-OPERATIVE CREDIT SOCIETY LTD., BHATKAL, A CO-OPERATIVE SOCIETY HAVING ITS REGISTERED HEAD OFFICE, AT CAR STREET, BHATKAL, TALUK: BHATKAL, DIST. UTTAR KANNDA-581353. REP. BY ITS AUTHORISED REPRESENTATIVE MR. MAHASH S/O. UMESH MURDESHWR, AGE: 61 YEARS, OCC. THE BRANCH MANAGER, THE JANATA CO-OPERATIVE CREDIT SOCIETY LTD., MURDESHWAR BRANCH, R/O. MURDESHWAR, MAVALLI-2 VILLAGE, TQ. BHATKAL, DIST. UTTAR KANNADA-581353. …RESPONDENT (BY SRIYUTHS. A.P. HEGDE JANMANE AND U.M. MALALI, ADVOCATE FPR C/RESPONDENT) Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:9953 WP No. 104257 of 2025 THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO I) TO SET ASIDE THE ORDER DATED 22/03/2025 PASSED BY THE ADDL. CIVIL JUDGE AND JMFC, BHATKAL IN O.S.NO. 06/2021 REJECTING THE PETITIONERS APPLICATION FILED UNDER ORDER 26 RULE 9 R/W. SECTION 151 OF CPC FOR APPOINTMENT OF A COURT COMMISSIONER I.E. ANNEXURE, A AND TO ALLOW THE APPLICATION FILED U/O 26 RULE 9 R/W SECTION 151 OF CPC BY THE PETITIONER IN O.S. NO. 06/2021, IN THE INTEREST OF JUSTICE. II) DIRECT THE TRIAL COURT TO APPOINT THE TALUKA SURVEYOR, BHATKAL AS COURT COMMISSIONER UNDER ORDER 26 RULE 9 CPC FOR IDENTIFYING AND MEASURING THE SUIT AND ADJACENT LANDS AS PRAYED IN THE APPLICATION. III. PASS SUCH ORDER OR ORDERS WHICH THIS HON’BLE COURT DEEMS FIT AND NECESSARY UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. THIS PETITION, COMING ON FOR PRELIMINARY HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. The petitioner is before this Court seeking for the following reliefs: i) To set aside the order dated 22/03/2025 passed by the Addl. Civil Judge and JMFC, Bhatkal in O.S.No. 06/2021 rejecting the Petitioner’s application filed under order 26 Rule 9 r/w. Section 151 of CPC for appointment of a Court Commissioner i.e. ANNEXURE A and to allow the application filed u/o 26 rule 9 r/w section 151 of CPC by the petitioner in O.S. No. 06/2021, in the interest of justice. ii) Direct the Trial Court to appoint the Taluka Surveyor, Bhatkal as Court Commissioner under order 26 Rule 9 CPC for identifying and measuring - 3 - HC-KAR NC: 2025:KHC-D:9953 WP No. 104257 of 2025 the suit and adjacent lands as prayed in the application. iii) Pass such order or orders which this Hon’ble Court deems fit and necessary under the facts and circumstances of the case. 2. OS No.6/2021 had been filed by the respondent herein seeking for eviction of the petitioner from the suit properties. When the matter was posted for final hearing, the petitioner who was defendant therein filed an application under Rule 9 of Order XXVI of the Code of Civil Procedure for appointment of a Commissioner for the purposes of measuring the suit property in Survey No.7A, verify if there is any building situate thereon, identify the property bearing Survey No.7B, verify if there is any building situate thereon as also to mark out the location of the road. 3. The claim of the petitioner/defendant is that the respondent having purchased property in Survey No.7A was trying to assert title over the property in Survey No.7B in which a building has been - 4 - HC-KAR NC: 2025:KHC-D:9953 WP No. 104257 of 2025 constructed and the petitioner is in occupation thereof. 4. The submission of the counsel for the petitioner is that there being a dispute as regards the identity of the property, the same can be resolved only by way of Taluka Surveyor being appointed as a Court Commissioner to demarcate the boundaries of the properties and submit a report in relation thereto. 5. Sri.A.P.Hegde Janmane, learned counsel for the respondent would however reiterate that the respondent has purchased Survey No.7A. The building has been constructed on Survey No.7A. The petitioner was initially making payment of rentals to the respondent knowing fully well that the respondent is the owner of the property and as such all these documents being on record, there is no requirement for appointment of a Commissioner - 5 - HC-KAR NC: 2025:KHC-D:9953 WP No. 104257 of 2025 when there is no dispute as regards the existence of building in Survey No.7A. 6. In this regard, he relies upon E-Swattu document which has been issued indicating the Survey number as also the photograph of the building in the said document, which has already been marked in evidence and on that basis he submits that the existence of a building on Survey No.7A is clearly established by the said document and therefore there would be no requirement for appointment of a Commissioner. 7. Heard Sri.Hareesha S Nayak, learned counsel for the petitioner and Sri.A.P.Hegde Janmane, learned counsel for the respondent. Perused the writ petition papers. 8. The short dispute in the present matter is as regards the Survey number in which the building is situated. The petitioner contending that the building is situated - 6 - HC-KAR NC: 2025:KHC-D:9953 WP No. 104257 of 2025 in Survey No.7B, whereas the respondent contending that the building is in Survey No.7A. Certain documents have been produced which have been adverted to herein above. In that view of the matter, I am of the considered opinion that the same would not categorically establish the location of the building and the Survey number on which the building is constructed. In my opinion, a Taluka Surveyor could have easily demarcated the boundaries of Survey Nos.7A and 7B, which could have put the matter at rest categorically establishing where the building stood and the rights of the respondent and the petitioner in relation thereto. 9. In that view of the matter, I pass the following: ORDER i. Petition is allowed. ii. The order dated 22.03.2025 passed in OS No.6/2021 by the Additional Civil Judge and - 7 - HC-KAR NC: 2025:KHC-D:9953 WP No. 104257 of 2025 JMFC, Bhatkal at Annexure-A is set aside. Consequently, interlocutory application filed under Rule 9 of Order XXVI of the Code of Civil Procedure by the petitioner is allowed. iii. The Talukka Surveyor, Bhatkal is appointed as a Court Commissioner under Rule 9 of Order XXVI of the Code of Civil Procedure to carry out the works as contained in para No.1 of the order on the application under Rule 9 of Order XXVI of Code of Civil Procedure as also as contained in page No.18 of the above petition. iv. Since the above order is passed in the presence of both the counsels, the Taluka Surveyor shall commence the survey work commencing from 10.30 a.m. on 13.08.2025 and submit a report to the Trial Court before 21.08.2025. - 8 - HC-KAR NC: 2025:KHC-D:9953 WP No. 104257 of 2025 v. There would be no requirement for issuance of any separate notice either to the petitioner or to the respondent. vi. In the event of any of the parties choosing not to participate in the survey, they would not be entitled to lead any evidence. Sd/- (SURAJ GOVINDARAJ) JUDGE SH CT:PA List No.: 1 Sl No.: 85