- 1 - HC-KAR NC: 2025:KHC:43736 WP No. 7083 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 7083 OF 2020 (GM-CPC) BETWEEN: MRS. SUMA ABRAHAM W/O SRI TOMY JOSEPH AGED ABOUT 45 YEARS R/AT PARAPPANATTU PADAVAIL MEENACHEL TALUK KOTAYAM DISTRICT KERALA STATE REPRESENTED BY HER GPA HOLDER MR. K.J. THOMAS AGED ABOUT 66 YEARS S/O K.C. JOSEPH R/AT KANJIRATINGAL HOUSE MARNE VILLAGE AND POST KARKALA TALUK UDUPI DISTRICT - 574 104. …PETITIONER (BY SRI JAYAKARA SHETTY H, ADV.) AND: 1. MANGALURU ELECTRICITY SUPPLY COMPANY LIMITED BEJAI, MANGALORE REP BY ITS MANAGING DIRECTOR - 575 001. 2. MR. ISWARA NAIK S/O NARAYANA NAIK JUNIOR ENGINEER MESCOM, KARAKAL TALUK - 574 104. 3. MR. PANDURANGA AGED ABOUT 31 YEARS S/O LATE RAMAPPA Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:43736 WP No. 7083 of 2020 ASSISTANT LINEMAN SECTION OFFICE MESCOM NITTE KARAKALA TALUK - 574 104. 4. MR. SHRIKANTAHA NAIK S/O JAYA NAIK AGED ABOUT 23 YEARS KALLAPU HOUSE, PALLI KALLYA VILLAGE KARKALA TALUK - 574 104. 5. MR. RAVINDRA NIK AGED ABOUT 37 YEARS S/O NARAYANA NAIK KALLAPU HOUSE, PALLI KALLYA VILLAGE KARKALA TALUK - 574 104. 6. MR. PRANESH POOJARY AGED ABOUT 34 YEARS, S/O SHANKAR POOJARY KALLAPU KUNTADY KALLYA VILLAGE KARKALA TALUK - 574 104. 7. MR. BALAKRISHNA NAIK AGED ABOUT 55 YEARS S/O MARU NAIK PADU KALLAPU PALLI, KALLYA VILLAGE KARKALA TALUK - 574 104. 8. MR. ANNU NAIK AGED ABOUT 47 YEARS S/O LATE DOOMA NAIK PADUKALLAPU HOUSE PALLI, KALLYA VILLAGE KARKALA TALUK - 574 104. …RESPONDENTS (BY SMT. ANJANA ABHAYVENKATESH, ADV., FOR SMT. RAKSHITHA D.J, ADV., FOR R-1 TO R-3; R-4 TO R-8 SERVED - UNRESPRESENTED) - 3 - HC-KAR NC: 2025:KHC:43736 WP No. 7083 of 2020 THIS WP FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TOCALL RECORDS FROM THE TRIAL COURT WHICH ULTIMATELY RESULTED IN PASSING IMPUGNED ORDER ANNEXURE-A DATED 19.6.2019 MADE IN O.S.NO.73/2016 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND ACJM AT KARKALA, DISMISSING THE MEMO DATED 3.6.2019 ANNEXURE-J AND THEREBY DISMISSING THE APPLICATION I.A.NO.3 FILED UNDER ORDER 26 RULE 9 R/W 151 OF CPC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. Petitioner has filed O.S.No.73/2016 before the jurisdictional Civil Court at Karkala against the respondents herein claiming damages of Rs.14 lakhs with interest at 12% per annum. 2. It is the case of the plaintiff that the respondents have trespassed into his property and forcibly cut 60 rubber trees from his property on the pretext of clearing the electricity supply lines that were drawn over the property belonging to the plaintiff. The said suit was opposed by the defendants by filing written statement. 3. IA no.3 was filed under Order XXVI Rule 9 read with Section 151 CPC by theplaintiff with a prayer to appoint a Court - 4 - HC-KAR NC: 2025:KHC:43736 WP No. 7083 of 2020 Commissioner to inspect the suit schedule property and submit a report. 4. The Trial Court had initially kept the said application in abeyance for the reason that application was filed at a premature stage. 5. After the evidence of both the parties was closed, a memo was filed on behalf of the plaintiff before the Trial Court to pass appropriate orders on IA no.3. The Trial Court vide the order impugned having rejected the said memo, also dismissed IA no.3 and being aggrieved by the same, petitioner is before this Court. 6. Application in IA no.3 has been filed on behalf of the plaintiff under Order XXVI Rule 9 read with 151 CPC with a prayer to appoint any advocate as Court Commissioner to visit the suit schedule property and file a report about cutting of rubber trees taking into consideration the existence of the stems of the rubber trees that were cut, and also to submit a report estimating the loss caused by the defendants to the plaintiff. - 5 - HC-KAR NC: 2025:KHC:43736 WP No. 7083 of 2020 7. The Trial Court vide order dated 07.08.2017 had kept IA no.3 in abeyance with an observation that the same will be considered after the parties adduce their evidence. After the evidence on behalf of both the parties were closed, a memo was filed on 03.06.2019 on behalf of the plaintiff with a prayer to consider IA no.3 which was kept in abeyance by the court. 8. Perusal of the order impugned would go to show that no orders have been passed by the Trial Court on the application filed by the petitioner under Order XXVI Rule 9 CPC. Vide the order impugned, the memo filed on 03.06.2019 is dismissed and consequently, IA no.3 is also dismissed. The Trial Court, earlier, had kept the said application in abeyance with an observation that the same shall be considered after the parties adduced their evidence. Therefore, it was incumbent on the Trial Court to consider the said application on its merits and pass appropriate orders. The Trial Court was, therefore, not justified in rejecting the memo filed by the petitioner with a prayer to pass appropriate orders on IA no.3 which is filed by the plaintiff. Therefore, the said order cannot be sustained. Accordingly, the following order: - 6 - HC-KAR NC: 2025:KHC:43736 WP No. 7083 of 2020 9. The writ petition is allowed. The order dated 19.06.2019 passed on the memo dated 03.06.2019 filed by the plaintiff in O.S.No.73/2016 by the Court of Senior Civil Judge & CJM, Karkala, is set aside, and consequently, the prayer made in the memo is granted. The Trial Court is directed to consider IA no.3 on its merits afresh after hearing both the parties, as expeditiously as possible, but not later than a period of two months from the date of receipt of the certified copy of this order. Sd/- (S VISHWAJITH SHETTY) JUDGE KK