- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO. 52675 OF 2019 (GM-CPC) BETWEEN: SMT. T. CHAMUNDESHWARI AGED ABOUT 52 YEARS, W/O SRI V THENNARASU, RESIDING AT NO.30, 2ND CROSS, KODANDARAMAPURA, SWIMMING POOL EXTENSION, MALLESHWARAM, BENGALURU-560003. …PETITIONER (BY SRI. SREEDHAR N.G., ADVOCATE) AND: 1. SMT. M LAKSHMI AGED ABOUT 76 YEARS, D/O LATE KUPPASWAMY REDDY, W/O SRI M MUNISWAMY, R/AT NO.20, M SUBBAIAH ROAD, KODANDARAMAPURAM, BENGALURU-560003. 2. a) SRI K SUBRAMANYAM S/O LATE M KUPPASWAMY REDDY, SINCE DEAD REPRESENTED BY HIS LRS., SMT RAJESHWARI, AGED ABOUT 82 YEARS, W/O LATE K SUBRAMANYAM, b) SMT S. AMUDHA KUMARI AGED ABOUT 62 YEARS, W/O SRI P B MURTHY, - 2 - BOTH RESPONDENT NOS.1(a) & 2(b) ARE R/AT NO.34, NEW NO.21, PRESENT NO.28, 2ND CROSS, KODANDARAMAPURAM, MALLESHWARAM, BENGALURU-560003. c) SMT USHA AGED ABOUT 58 YEARS, W/O G VENUGOPAL, D/O LATE K SUBRAMANYAM, R/AT NO.506, 4TH MAIN ROAD, DOBHIGHAT, BENGALURU-560019. 3. SRI VILVAPATHI AGED ABOUT 84 YEARS, R/AT NO.74, 3RD CROSS, CHELUR PALYA, MAGADI ROAD, BENGALURU-560023. 4. SMT VASANTHA AGED ABOUT 64 YEARS, D/O VILVAPATHI AND KAUSALYA, W/O SRI UMAPATHI, R/AT NO.63, 15TH C CROSS, MUTHYALANAGAR, BANDAPPA GARDEN, BENGALURU-560054. 5. SMT RAMEENA AGED ABOUT 53 YEARS, W/O LATE SUBRAMANI V, DAUGHTER IN LAW OF LATE KAUSALYA, 6. SRI RAJA AGED ABOUT 27 YEARS, S/O LATE V SUBRAMANI, 7. KUM MALA AGED ABOUT 25 YEARS, D/O LATE V SUBRAMANI, RESPONDENT NOS.(5) TO (7) ARE - 3 - R/AT NO.74, 3RD CROSS, CHELUR PALYA, MAGADI ROAD, BENGALURU-560023. 8. SMT FATHIMUNNISA AGED ABOUT 54 YEARS, W/O LATE V SHEKAR, 9. SRI NAVEEN AGED ABOUT 36 YEARS, S/O LATE V SHEKAR, 10. SMT SEEMA AGED ABOUT 34 YEARS, D/O LATE V SHEKAR, 11. SMT ASHA AGED ABOUT 32 YEARS, D/O LATE V SHEKAR, RESPONDENT NOS.(8) TO (11) ARE R/AT NO.82/2, PILLAMMA BLOCK, 1ST MAIN, SRIRAMPURAM, BENGALURU-560021 12. SMT BHANUMATHI W/O LATE SELVAM AND DAUGHER-IN-LAW OF LATE RENAMMA, AGED ABOUT 57 YEARS, 13. SRI GOKUL AGED ABOUT 37 YEARS, S/OLATE SELVAM, 14. SRI ANAND AGED ABOUT 32 YEARS, S/O LATE SELVAM, 15. SMT SHASHIREKA AGED ABOUT 29 YEARS, D/O LATE SELVAM, - 4 - RESPONDENT NOS. (12) to (15) ARE R/AT SEEKALAJAPURAM, MOTTUR, THIRUVALAM POST, VELLORE DISTRICT, TAMIL NADU-632515. 16. SRI G GUNASHEKAR AGED ABOUT 66 YEARS, S/O LATE MURUGESH, 17. SRI SOUNDAR AGED ABOUT 62 YEARS, S/O LATE MURUGESH, RESPONDENT NOS. (16) AND (17) ARE R/AT SEEKALAJAPURAM, MOTTUR, THIRUVALAM POST, VELLORE DISTRICT, TAMIL NADU-632515. 18. SMT MALAR AGED ABOUT 58 YEARS, D/O LATE RENAMMA AND MURUGESH, W/O V DEVENDRAN, CLERK, VELLUR SUGAR MILLS, VELLORE, TAMIL NADU-632519. 19. SMT KANTHAMMA AGED ABOUT 68 YEARS, W/O LATE MUNIRATHNAM, 20. SRI RAJENDRAKUMAR AGED ABOUT 44 YEARS, S/O LATE MUNIRATHNAM, RESPONDENT NOS. (19) AND (20) ARE R/AT NO.33/20, SUDEENDRANAGAR, 2ND CROSS, KODANDARAMAPURAM, BENGALURU-560003. 21. SMT PARVATHAMMA AGED ABOUT 80 YEARS, D/O LATE M KUPPASWAMY REDDY, W/O LATE DEVARAJ, - 5 - R/AT NO.20, N SUBBAIAH ROAD, KODANDARAMAPURAM, BENGALURU-560003. 22. SMT RUKMINI AGED ABOUT 80 YEARS, D/O LATE M KUPPASWAMY REDDY, W/O LATE RAMASWAMY, R/AT NO.364, 7TH CROSS, GOKULAM POST, MATHIKERE, BENGALURU-560054 23. SMT AMUDAM AGED ABOUT 76 YEARS, D/O LATE M KUPPASWAMY REDDY, W/O LATE KANNAN, C/O GOVINDARAJ, SRI GANGA ENGINEERING WORKS, NO.40, VARADARAJANAGAR, SINGAPURA 4TH STAGE, BENGALURU-560097. 24. SRI A R N BABU AGED ABOUT 80 YEARS, 25. SRI UMACHANDRA AGED ABOUT 49 YEARS, S/O SRI A R N BABU, BOTH RESPONDENT NOS. (24) and (25) ARE R/AT NO.7/A, JAGANNATHA ROAD, VETRINAGAR, TVK NAGAR, CHENNAI, TAMIL NADU-600082. 28. SMT G KUMUDHA AGED ABOUT 45 YEARS, D/O A R N BABU, R/AT NO.9/2, PUDHU TERU, KOGIDHA PATTARAI, VELLORE, TAMIL NADU-635512 …RESPONDENTS (BY SRI. RAGHAVENDRA, ADV. FOR SRI. SRINIVASAN B.N., ADV. FOR R1, SRI. HARISHA O.K., ADV. FOR R4-R18, R21, - 6 - R23,R25 AND R26, SRI. RAJARAMA D. BHAT, ADV. FOR R22, R2(B), R2(C), R3, R19, R20 – ARE SERVED AND UNREPRESENTED. V/O DTD.19.07.2022 R2(B & C) ARE TREATED AS LR’S OF R2 (A). V/O DTD. 19.07.2022, R25 & R26 ARE LR’S OF R24.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.16.11.2019 PASSED BY THE LEARNED XVIII ADDL CITY CIVIL JUDGE AT BANGALORE (CCH-10) IN FDP NO.20/2013 ANNEXURE-E ACCEPTING THE REPORT OF THE COURT COMMISSIONER IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND AS THE SAME IS NOT LEGAL, PROPER AND CORRECT AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.08.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER 1. This writ petition has been filed seeking to quash the order dated 16.11.2019 on “Orders of Commissioner’s Report” in FDP No.20/2013 on the file of XVIII Addl. City Civil Judge at Bangalore and consequently, a direction in the nature of mandamus has also been prayed directing the Court below to conduct an enquiry for examination of the Court Commissioner and to afford an opportunity to the petitioner to cross examine the Court Commissioner in FDP No.20/2013. - 7 - 2. The petitioner herein is respondent No.20 before the Court below and respondent No.1, herein, was the petitioner before the Court below. Respondent Nos.2(a), 2(b), 2(c) herein were respondent Nos.1(a), 1(b), 1(c) respectively before the court below. Respondent Nos.3 to 20 herein, were respondent Nos.2 to 19 respectively. Respondent Nos.21 to 26 herein were respondent Nos.21 to 26. 3. The facts of the case are as follows: Respondent No.1 filed a suit in O.S.No.418/2006 seeking for partition and separate possession of the immovable properties bearing No.21, Old No.34, situated at 2nd Cross, Sudeendranagar, Kodandaramapura, Malleshwaram, Bengaluru-03, Corporation Ward No.3, which is measuring East to West: 45ft and North to South 30ft totally 1350 Sq.ft and adjacent property bearing No.20, Old No.33, situated at 2nd Cross, Sudeendranagar, Kodandaramapura, Malleshwaram, Bengaluru-03, which is measuring East to West 45 ft and North to South 30ft totally measuring 1350 Sq.ft and that the petitioner was - 8 - defendant No.20 in the said suit. The original suit was decreed vide judgment and decree dated 03.01.2012, thereby determining the share of respondent No.1 as 1/8th in the said properties. The petitioner and her mother who are respondent Nos.18 & 19 in the above writ petition would together entitled for 1/8th share in the schedule properties to the aforesaid original suit. 4. Respondent No.1 filed a Final Decree Proceedings in FDP No.20/2013 before the Hon’ble Court below. On 06.06.2015, respondent No.1 had filed I.A. for appointment of a Court Commissioner so as to effect division of properties as per the preliminary decree. Pursuant to the same, one Sri.N.Jayaprakash has been appointed as the Court Commissioner, who thereafter conducted the survey and filed his report dated 14.12.2018 along with several sketches purporting to be of the schedule properties. The petitioner filed the statement of objections to the Commissioner’s report and also filed a separate sketch to demonstrate that without disturbing the outhouse portion in item No.1 of the - 9 - schedule properties, where the petitioner and respondent No.18 are residing, the partition can be effected without causing any dearth for availability of property to be shared by other parties to the FDP or without causing any kind of hindrance to divide the property leaving aside this outhouse portion in item No.1 of the schedule properties. 5. The Court below, without affording an opportunity for the petitioner to represent her case along with the sketches and without examining the Court Commissioner, proceeded to adjudicate upon the objections without any enquiry and accepted the Court Commissioner’s report by its order dated 16.11.2019. Aggrieved by the same, the current writ petition has been filed. 6. Heard learned counsel for petitioner and respondent Nos.1, 4 to 18, 21, 22, 23, 25 and 26. Respondents Nos.2(b), 2(c), 3, 19 and 20 were served, but unrepresented. 7. Learned counsel for the petitioner would contend that the Court below has accepted the Court Commissioner’s - 10 - report without enquiry and thereby putting a quietus to all possibilities for working out equities and adjustments and as such, the impugned order is liable to be set aside. 8. It was also contended that the objections filed by the petitioner to the Commissioner’s report, it is quite clear that the same does not reflect the true and correct state of affairs prevailing over the schedule property. If the objections of the petitioner had been considered, one could have perceived that no disturbance could be caused to the out house portion. Therefore, the Court below, without considering the objections, has caused miscarriage of justice. 9. It was further contended that, the Court Commissioner has been directed only to measure the schedule properties and there were no writ from the Court below to express his personal opinion as to whether schedule properties could be sold instead of dividing. Thus, the Commissioner’s report was not proper. - 11 - 10. Another contention that was raised was that the reasons assigned by the Court Commissioner to express that the schedule properties cannot be divided without demolishing the entire structure over the same, is absolutely not tenable and the same is liable to be questioned. It was also contended that, by the impugned order, the petitioner lost the opportunity to demonstrate the true and correct state of affairs and thereby causing irretrievable prejudice to the petitioner and therefore, liable to be quashed. 11. The petitioner relied upon the following decisions, in support of his contentions: Parappa v. Bhimappa, 2008 SCC OnLine Kar 66 : ILR 2008 Kar 1840 : (2008) 4 AIR Kant R 122 : (2008) 3 ICC 786 : (2008) 3 Civ LT 335 : (2008) 3 KCCR 1374 at page 1853 19. A reading of the aforesaid provision makes it clear that the report of the Commissioner once submitted to the Court, shall be evidence in the suit and shall form part of the record. It is not necessary that the said Commissioner's report is to be marked as an exhibit in the case. Similarly, it is not necessary that the said Commissioner is to be examined, to - 12 - prove the contents of the said report. It is up to the choice of the party to examine the commissioner in respect of the matters referred to him or mentioned in his report. The examination referred to in the aforesaid provision is to be understood in the context of the word examination referred to in Chapter 10 of the Evidence Act. The examination includes examination in chief, cross examination and re- examination. Therefore, if a party to the proceedings has no grievance whatsoever against the report of the Commissioner the question of, that party examining the Commissioner would not arise. However, if either of the parties do not accept the correctness of the Commissioner's report, it is open for them to file their written objections opposing the said Commissioner's report. In order to substantiate the said objections and to request the Court not to action the Commissioner's report, with the permission of the Court, they have been given an opportunity to examine the Commissioner personally in the open Court touching any of the matters referred to by him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. Normally, when objection is filed to the Commissioner's report contending that the said report is incorrect, to substantiate the said stand it is necessary for the party to examine the Commissioner personally in Court and cross examine him on those aspects in the light of the objections taken. If the party is successful in discrediting the entire report or a portion of the report in respect of which he has-grievance, the Court in its discretion - 13 - may reject the report of the Commissioner. However, if that cross examination do not substantiate the objection taken by the party, it is open to the Court to accept and act on the said Commissioner's report. Only when the Commissioner is examined, then the Court has to consider the report along with the oral evidence in order to appreciate the probative value of the said report and on such appreciation, may accept the report or may reject the report. If the report is rejected in total, it is open to the parties to have one more Commissioner appointed for the very same purpose. But for admission of the said Commissioner's report as evidence, it is not necessary that the Commissioner should enter the witness box, or he should produce the said report before the Court and the Court has to mark it as an exhibit in the case. In other words, without marking the Commissioner's report as exhibit, without the Commissioner being examined in the case, the said Commissioner's report can be taken as evidence in the case. Merely because the said piece of evidence is taken on record it does not follow that, all that is stated there is true or proved. Proof and relevancy is different from admissibility of the evidence. 21. It is also possible that even in civil cases, a party to substantiate his case may rely upon the report of an expert which he has obtained prior to the institution of the suit or even after the institution of the suit. If the party wants to rely on such report and if he produces the said report into Court, the said report would not form part of the record and the - 14 - report of such expert would not be treated as evidence in the suit by mere production of the same. In such circumstances, it is obligatory on the part of the party who relies on the said expert report to examine him, produce the report through him, get it marked and then subject the said expert for cross- examination of the opposite party. It is only after the examination of such expert, his report would become admissible in evidence. Therefore, it is necessary to bear this distinction in mind while dealing with a report of an expert, who is not a Commissioner Shri Shadaksharappa vs Kumari Vijayalakshmi and Ors., WP No. 201274 of 2022, High Court of Karnataka at Kalaburgi. i) The court may in its discretion examine the Commissioner on any matter concerning the report. There is no compulsion to examine the Commissioner. However, if the objection is filed to the report, and the party filing objection seeks to examine the Commissioner then the Commissioner should be examined. In either case, once the Commissioner is examined, the court having due regard to the evidence, may reject or accept the report in its entirety or in part, provided there are materials to justify such a finding on the report. In appropriate cases, the merit of the report can be considered at the final hearing. While considering the report at the final hearing, if the court finds that the report is erroneous and fresh commission is required, the court may pass appropriate order in this regard. - 15 - Gopala Somayaji C. v. R. Madhava Pai, 1988 SCC OnLine Kar 75 : (1988) 1 Kant LJ 499 at page 499 3. It is true, there it has been observed that the Commissioner may be called upon to submit a further report in answer to the objections filed by parties. That is now obviated by the amendment made to Rule 10 of Order 26 of the C.P.C. by which the report is to be treated as part of the evidence and the parties to the suit are permitted to file their objections to the Commissioner's report. The plaintiff may avail himself of that provision and disprove the accuracy of the Commissioner's report by leading independent evidence or cross-examining the Commissioner on his report instead of calling for fresh report in the light of his objections. 12. It is also contended that the respondents are having good heritage value towards the building. So, the portion occupied by respondent No.20 need not be disturbed in any manner so as to expedite the division of the schedule property. Further it is contended that if respondent No.20 is going to continue with the occupation of her portion, it will not cause any loss and hardship to the petitioner or to the respondents. She had also stated that the old number of item No.1 of the suit schedule property is 21 and not 34 - 16 - whereas old number of item No.2 is property Nos.20 and not 33 and the Commissioner had subscribed incorrect number in the report. 13. On hearing the submissions of the petitioner’s counsel and after perusal of the material on record, this Court observed that on filing the Commissioner’s report, both parties have filed their respective objections and the Trial Court proceeded further in passing the impugned order in final decree proceedings in FDP No.20/2013 dated 16.11.2019 is illegal and arbitrary. After filing the Commissioner’s report and after receiving the objections from both parties, the Trial Court has to conduct an enquiry and pass an appropriate orders, instead of doing the same, the Trial Court has passed the impugned order dated 16.11.2019 without conducting an enquiry and also without affording any opportunities to the parties, the impugned order passed by the Trial Court is not proper in the eye of law. In view of the above discussions, without touching the merits of the impugned order, this Court - 17 - intends to set-aside the impugned order dated 16.11.2019. 14. This Court further relied on the judgment filed by the petitioner’s counsel that in Shri Shadaksharappa vs Kumari Vijayalakshmi and Ors., held in WP No.201274 of 2022, High Court of Karnataka at Kalaburgi, which judgments are relevant to consider the case of the petitioner and also to set-aside the order dated 16.11.2019 and further directed the Trial Court to consider the case afresh and to conduct an enquiry by affording an opportunity to both parties and pass appropriate orders in accordance with law. With the above observations, the writ petition is allowed. Sd/- (DR.K.MANMADHA RAO) JUDGE GH