- 1 - HC-KAR NC: 2025:KHC:31266 WP No. 12554 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 12554 OF 2023 (GM-CPC) BETWEEN: DORESWAMY S/O LATE GURUMALLAPPA AGED ABOUT 45 YEARS R/O BOMMENAHALLI VILLAGE YELWALA HOBLI, MYSURU TALUK MYSURU DISTRICT – 571 130. …PETITIONER (BY SRI SYED AKBAR PASHA, ADVOCATE) AND: 1. B.BASAVARAJU S/O KEMPAPPA AGED ABOUT 50 YEARS R/O BOMMENAHALLI VILLAGE YELWALA HOBLI, MYSURU TALUK MYSURU DISTRICT – 571 130. 2. SHIVANNA S/O KEMPAPPA AGED ABOUT 45 YEARS R/O BOMMENAHALLI VILLAGE YELWALA HOBLI, MYSURU TALUK MYSURU DISTRICT – 571 130. Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31266 WP No. 12554 of 2023 3. PUTTAMMA W/O LATE GURUMALLAPPA AGED ABOUT 70 YEARS R/O BOMMENAHALLI VILLAGE YELWALA HOBLI, MYSURU TALUK MYSURU DISTRICT – 571 130. 4. SOMANNA S/O LATE GURUMALLAPPA AGED ABOUT 50 YEARS R/O BOMMENAHALLI VILLAGE YELWALA HOBLI, MYSURU TALUK MYSURU DISTRICT – 571 130. 5. SHIVANNA S/O LATE GURUMALLAPPA AGED ABOUT 48 YEARS R/O BOMMENAHALLI VILLAGE YELWALA HOBLI, MYSURU TALUK MYSURU DISTRICT – 571 130. 6. GOWRAMMA W/O SIDDAPPA D/O LATE GURUMALLAPPA AGED ABOUT 42 YEARS R/O BOMMENAHALLI VILLAGE YELWALA HOBLI, MYSURU TALUK MYSURU DISTRICT – 571 130. 7. PRAMILA W/O SHIVANNA D/O LATE GURUMALLAPPA AGED ABOUT 40 YEARS R/O BOMMENAHALLI VILLAGE - 3 - HC-KAR NC: 2025:KHC:31266 WP No. 12554 of 2023 YELWALA HOBLI, MYSURU TALUK MYSURU DISTRICT – 571 130. 8. LAKSHMI W/O SOMANNA D/O LATE GURUMALLAPPA AGED ABOUT 42 YEARS R/O BOMMENAHALLI VILLAGE YELWALA HOBLI, MYSURU TALUK MYSURU DISTRICT – 571 130. …RESPONDENTS (BY SMT. GEETHA M., ADVOCATE FOR R1; NOTICE TO R2 IS H/S VIDE ORDER DATED 31.10.2023 NOTICE TO R3 TO R8 IS DISPENSED WITH VIDE ORDER DATED 31.10.2023) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE LEARNED IV ADDL CIVIL JUDGE AND JMFC MYSURU ORDERS ON IA.NO.11, DTD 16.02.2023 IN O.S.NO.2092/2009, WHICH IS PRODUCED AT ANNEXURE-E TO THE WRIT PETITION. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC:31266 WP No. 12554 of 2023 CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER Petitioner - defendant No.1(d) in O.S.No.2092/2009, is before the Court calling in question an order dated 16.02.2023, passed by the IV Additional Civil Judge and JMFC, Mysuru, whereby, an application – I.A.No.11 filed under Order XXVI rule 9 r/w. Section 151 of the CPC, by plaintiff No.1 seeking appointment of Court Commissioner, comes to be allowed. 2. Heard Sri Syed Akbar Pasha, learned counsel for the petitioner, Smt. Geetha M., learned counsel for the respondent No.1. Notice to respondent No.2 and respondent Nos.3 to 8 is held sufficient and dispensed with, respectively. 3. A suit is instituted by respondent Nos.2 and 3 – plaintiffs in O.S.No.2092/2009 seeking declaration and mandatory injunction against the defendants. The suit progresses in terms of law. At the time when the matter was posted for its judgment, plaintiff No.1 comes up with an application – I.A.No.11 seeking appointment of a Court Commissioner under Order XXVI Rule 9 r/w. Section 151 of the - 5 - HC-KAR NC: 2025:KHC:31266 WP No. 12554 of 2023 CPC to measure the suit schedule property. The concerned Court allows the application despite the objections filed by the present petitioner as also the fact that the matter was posted for its judgment. The result of which is restoration of the matter for a clarification in terms of the application. This is what has driven the petitioner - defendant No.1(d) to this Court in the subject petition. 4. Learned counsel for the petitioner would reiterate the contents of the objections filed before the concerned Court on the application so filed by the plaintiff. Notwithstanding the objections, the concerned Court has allowed the application and appointed a Court Commissioner to measure the plaintiff’s own suit schedule property. He would submit that when the matter was reserved for judgment, the application comes to be filed and therefore, seek quashment of the order so passed by the concerned Court. 5. Learned counsel for respondent No.1 would vehemently refute the submission in contending that the petitioner is a subsequent purchaser and therefore, it was necessary for an appointment of a Court Commissioner to - 6 - HC-KAR NC: 2025:KHC:31266 WP No. 12554 of 2023 resolve the dispute. Without the report of the Court Commissioner, the dispute would not get resolved and the suit would languish before the concerned Court. In that light, learned counsel seeks dismissal of the petition. 6. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record. 7. The afore-narrated facts are not in dispute. It is an admitted fact that the suit is of the year 2009; 14 years pass by; trial progressed and the matter was reserved for its judgment. When the matter was reserved for its judgment, the application in I.A.No.11 comes to be filed by plaintiff No.1, which is comes to be allowed. The order of the concerned Court reads as follows: “In the present case, the matter was posted for Judgement, later it was posted for clarification. Hence this decision is not applicable to the facts and circumstances of the present case. 12. This suit for possession of B schedule property. Plaintiff stated in the plaint that, B schedule property encroached by the defendant and direct to demolish illegal construction of B schedule property. This issue court cannot be ascertain by oral and documentary evidence produced by both side. Hence it is just and - 7 - HC-KAR NC: 2025:KHC:31266 WP No. 12554 of 2023 necessary to appoint court commissioner for purpose of elucidating the matter in dispute. Hence plaintiff has made out to sufficient grounds to allow the application. Accordingly, this court answered Point No.1 in the Affirmative. 13. Point No.2: In view of the above discussion on point No 1, this court proceed to pass the following: ORDER IA No.11 filed by the plaintiff no.1 under Order 26 Rule 9 & Sec. 151 of C.P.C is hereby allowed. The concerned Civil Engineer is appointed as a court commissioner and directed him to survey 'A & B' schedule properties and report the same. Both parties are hereby furnish the memo of instruction. The rate of Court Commissioner is fixed at Rs.2,000/-.” The reasons for seeking the appointment of the Commissioner as found in the affidavit of the plaintiff is as follows: “1. I swear that I and my younger brother Shivanna have filed the above said suit for the relief of declaration that we are the plaintiffs are the owners of the 'A' schedule property and for possession of 'B' schedule property and for demolition of illegal construction in the 'B' schedule property. 2. I swear that the evidence on both the sides are over and the case is posted for judgement, in the mean while i.e., on 26.08.2016 the Hon'ble Court was pleased - 8 - HC-KAR NC: 2025:KHC:31266 WP No. 12554 of 2023 to sought for clarification regarding the measurement of the property. 3. I further swear that the suit schedule 'A' property measuring 0.23 ½ guntas out of which 0.11½ guntas has been fallen to my share and 0.12 guntas has been to the share of second plaintiff. 4. I further swear that in the plaint para 2 the measurement 0.23 ½ guntas and 0.11 ½ guntas is wrongly mentioned as 0.23 guntas and 11 guntas. Hence I made an application for an amendment of measurement (for correction) of plaint, it is still pending. 5. I further swear that the Hon'ble Court sought for clarification regarding measurement of property. No clarification has been given by either of the parties from 26.08.2016 to 04.01.2017 nearly 9 hearings have elapsed. 6. I submit that the measurement of properties in dispute i.e., property of the defendant and the property of plaintiffs and the dispute between the plaintiffs and defendants i.e., whether the plaintiffs have encroached the properties towards the defendants or whether the defendants have encroached the properties towards the plaintiffs, cannot be ascertained by giving oral evidence unless and until the spot inspection conducted by the technical person by visiting the spot and conducting the spot mahazer. 7. I submit that it is absolutely necessary to elucidate the matter in issue, the appointment of a competent technical person is necessary. Hence this application. Wherefore, I pray that this Hon'ble Court be pleased to allow the application as prayed therein, in the interest of justice and equity. I do swear in the name of God that this is my name and signature and the contents of this affidavit are true - 9 - HC-KAR NC: 2025:KHC:31266 WP No. 12554 of 2023 and correct and in token whereof I have signed this at Mysuru. Identified by me, The defendants then objects to the same on the score that the matter was reserved for judgment and only to drag the proceedings, the application is preferred. The objections would read as follows: 1. That the application as brought is not maintainable both in point of law and as well as on facts. 2. That the impugned application is filed only with an intention to protract the proceedings as far as possible. 3. It is pertinent to note that the Plaintiffs have to stand on their own leg and strength by producing cogent evidence before this Hon'ble Court to substantiate their case. In fact this case was posted for Judgment long back after hearing both the sides and after recording evidence of both the parties. The Plaintiffs were unable to answer the clarifications sought by this Hon'ble Court at the time of hearing the Plaintiffs while posting for Judgment. Hence, the Plaintiffs are making in vain efforts to make out a case, even though they have no case by hook or crook by filing applications after applications. 4. It is further pertinent to note that a Court commissioner cannot be appointed to collect the evidence on behalf of the Plaintiffs and the plaintiffs have substantiate their case by leading cogent evidence before this Hon'ble Court. Hence, on this ground alone the impugned application is liable to be rejected. 5. Even otherwise the Claim of the Plaintiffs and the reliefs sought by the Plaintiffs are stale claim and cannot be - 10 - HC-KAR NC: 2025:KHC:31266 WP No. 12554 of 2023 granted. Hence, on this ground also the impugned application deserves to be rejected in lime. 6. Viewing any angle the impugned application is merit less and deserves to be rejected in toto. For the foregoing reasons the LR. No.1(d) of the Defendant prays this Hon'ble Court to reject this application with EXEMPLARY COST, which is necessary in the interest of justice and equity.” The concerned Court notwithstanding the objections and the fact that the matter was reserved for its judgment, relying on the judgments that would not be applicable to the facts of the case, allows the application seeking appointment of a Court Commissioner to survey the suit schedule properties and report the same. 8. As observed hereinabove, the suit was for declaration and mandatory injunction. The application filed by plaintiff No.1 was at the stage when the matter was reserved for judgment and therefore, ought not to have been entertained by the concerned Court. The entertainment of which is on the face of it, illegal. The order, i.e., the impugned order passed by the concerned Court does not reflect even semblance of a reason as to why the application is to be allowed and why the measurement of the property is necessary. The application is - 11 - HC-KAR NC: 2025:KHC:31266 WP No. 12554 of 2023 preferred only as a ruse to drag the proceedings before the concerned Court. For the aforesaid reasons, the order is rendered unsustainable and the unsustainability of which would lead to its obliteration. 9. Accordingly, the following: ORDER a. The writ petition is allowed. b. The order dated 16.02.2023 passed by the IV Additional Civil Judge and JMFC, Mysuru, stands quashed. c. Since the suit is of the year 2009, the concerned Court shall infuse finality in the suit and endeavour to conclude the proceedings within an outer limit of two months from the date of receipt of a copy of the order, as the matter was already reserved for its judgment. Sd/- (M.NAGAPRASANNA) JUDGE NVJ List No.: 1 Sl No.: 41 CT:SS