- 1 - HC-KAR NC: 2025:KHC:51066 WP No. 22248 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 22248 OF 2021 (GM-CPC) BETWEEN: LAKSHMANA C.M S/O LT C H MUNIYAPPA AGED ABOUT 47 YEARS R/AT CHIKKONAHLLI VILLGE KORA HOBLI, TUMKURU TQ AND DIST - 572 219. …PETITIONER (BY SRI RAVI H.K, ADV.) AND: 1. C.G. CHIKKATHIMMAIAH S/O C. GOVIDAIAH AGED ABOUT 50 YEARS R/AT CHIKKONAHALLI VILLAGE KORA HOBLI, TUMKRU TQ AND DIST - 572 219. 2. THE SECRETARY THIMMARAJANAHALI GRAM PANCHAYATH, KORA HOBLI TUMKUR TQ AND DIST - 572 219. …RESPONDENTS (BY SRI ABHISHEK R HUDDAR, ADV., FOR SRI AKSHAY RAMACHANDRA HUDDAR, ADV., FOR R-1; V/O DTD 14.12.2001, NOTICE INSOFOR AS R-2 IS WAIVED) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD. 15.11.2021 AT ANNX-E PASSED IN O.S.NO. 641/2014 BY THE IIIRD ADDL CIVIL JUDGE AND JMFC AT TUMKUR REJECTING THE I.A. FILED UNDER ORDER 26 RULE 9 R/W SECTION 151, CPC BY THE Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:51066 WP No. 22248 of 2021 PETITIONER BY ISSUING A WRIT OF CERTIORARI AND CONSEQUENTLY ALLOW THE SAID APPLICATION. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. Plaintiff is before this Court in this writ petition filed under Article 227 of the Constitution of India with a prayer to set aside the order dated 15.11.2021 passed on an application filed under Order XXVI Rule 9 read with Section 151 CPC in O.S.No.641/2014 by the Court of III Addl. Civil Judge & JMFC, Tumakuru. 2. Heard the learned Counsel for the parties. 3. Petitioner herein has filed suit in O.S.No.641/2014 before the jurisdictional Civil Court at Tumakuru, seeking the relief of declaration of his title in respect of suit schedule 'A' property and also has sought for a decree of mandatory injunction to demolish the construction put up by defendant no.1 in suit schedule 'B' property, and thereafter, hand over vacant possession of the said property in his favour. A consequential - 3 - HC-KAR NC: 2025:KHC:51066 WP No. 22248 of 2021 relief of permanent injunction is also sought against defendant no.1. 4. In the said suit, defendant no.1 has entered appearance and filed his written statement. 5. After the evidence of both the parties was recorded, application was filed under Order XXVI Rule 9 read with Section 151 CPC on behalf of the plaintiff, which was opposed by the contesting defendant by filing objections. 6. The Trial Court vide the order impugned has rejected the said application. Being aggrieved by the same, petitioner/plaintiff is before this Court. 7. Perusal of the averments made in the plaint would go to show that the plaintiff claims right, title and interest over suit schedule 'A' property by virtue of a grant order under which the suit schedule 'A' property was allotted to him under the Ashraya Scheme. 8. It is the case of the plaintiff that a portion of the suit schedule 'A' property which is described as suit schedule 'B' - 4 - HC-KAR NC: 2025:KHC:51066 WP No. 22248 of 2021 property has been encroached by defendant no.1 and he has put up construction in the same. The allegations made in the plaint have been denied by defendant no.1 in his written statement. After the Trial Court had recorded the evidence of both the parties, application under Order XXVI Rule 9 read with Section 151 CPC was filed on behalf of the plaintiff with a prayer to appoint a Court Commissioner for the purpose of holding a local inspection of the suit schedule property, and thereafter, submit a report. 9. The coordinate bench of this Court in the case of SHADAKSHARAPPA VS KUMARI VIJAYALAXMI & OTHERS - W.P.NO.201274/2022 disposed of on 24.01.2023, in paragraph no.13, has observed as under: "13. The next question is, at what stage of the proceeding in a suit, the application can lie? As could be easily noticed from the provision, the provision is not ‘stage’ centric. Thus the provision can be invoked either before the commencement of the trial or after. If the application is filed before the commencement of the trial, the court having regard to the pleadings and records may allow such application before the commencement of the trial. For example, in a given case, if the report is necessary for consideration of an application seeking some interim measure, before the - 5 - HC-KAR NC: 2025:KHC:51066 WP No. 22248 of 2021 commencement of the trial, the Commissioner can be appointed, if the case is made out for a such appointment. On the other hand, again, having due regard to the pleadings and records, if the court finds that there is every likelihood that after recording the evidence of the parties, the need to appoint the court Commissioner may not arise or that the court is of the view that it can take a call on the application, only after recording the evidence, then it may defer the order on the application till such time. Thus the decision as to when the report of the Commissioner is to be secured must be taken having due regard to the facts and circumstances." 10. From a reading of the aforesaid, it is very clear that the application for appointment of Court Commissioner needs to be normally entertained by the Court only after the evidence of both the parties is recorded. 11. Learned Counsel for the respondent has placed reliance on the judgment of Allahabad High Court in the case of SANJAY VS ONKAR ARORA - (2019) 136 ALR 629, wherein a contrary view has been taken. The same is not binding on this Court. 12. In Shadaksharappa's case supra, this Court has observed that the power of the court to appoint Court Commissioner is - 6 - HC-KAR NC: 2025:KHC:51066 WP No. 22248 of 2021 discretionary, and in paragraph no.21 of the said order, this Court has observed that in cases relating to dispute relating to the boundary, and encroachment, in normal circumstances, the Court Commissioner should be appointed. 13. Appointment of Court Commissioner should be made considering the nature of allegations found in the pleadings and if the court feels that based on the oral and documentary evidence placed on record, it would be not possible to effectively adjudicate the dispute. A report of the Court Commissioner would be of assistance to the court to effectively adjudicate the dispute between the parties. Since in the present case allegation is made by the plaintiff that the defendant has encroached suit schedule 'B' property and has put up construction on the same, which is denied by defendant no.1 in the written statement, I am of the opinion that the Trial Court was not justified in rejecting the application filed on behalf of the plaintiff under Order XXVI Rule 9 read with Section 151 CPC. Therefore, the impugned order cannot be sustained. Accordingly, the following order: - 7 - HC-KAR NC: 2025:KHC:51066 WP No. 22248 of 2021 14. Writ petition is allowed. The impugned order 15.11.2021 passed on an application filed under Order XXVI Rule 9 read with Section 151 CPC in O.S.No.641/2014 by the Court of III Addl. Civil Judge & JMFC, Tumakuru, is set aside. Consequently, the prayer made in the application filed by the plaintiff under Order XXVI Rule 9 read with Section 151 CPC, is granted. Sd/- (S VISHWAJITH SHETTY) JUDGE KK