- 1 - HC-KAR NC: 2025:KHC:31299 WP No. 3628 of 2024 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. 3628 OF 2024 (GM-CPC) BETWEEN: SMT. RADHAMMA, W/O SRI. MANJUNATH, AGED ABOUT 50 YEARS, RESIDING AT NO.122, 1ST FLOOR, 9TH MAIN, 16TH CROSS, SONNENAHALLI, ULLAL POST, BENGALURU – 560 110. …PETITIONER (BY SMT. NAGAVENI G. H., ADVOCATE) AND: SMT. LAKSHMI, W/O SRI. GANESH M., AGED ABOUT 46 YEARS, RESIDING AT NO.122, 3RD FLOOR, 9TH CROSS, MARUTHI NAGAR, 16TH MAIN ROAD, SONNENAHALLI, ULLAL POST, BENGALURU – 560 110. …RESPONDENT (BY SRI. PARIKSHIT S. S., ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DT. 06/01/2024 PASSED BY THE LEARNED 1ST ADDL. JUNIOR DIVISION, BENGALURU RURAL DISTRICT, BENGALURU ON IA NO.3 IN O.S.NO.792/2020 VIDE ANNEXURE-E AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31299 WP No. 3628 of 2024 CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER Heard Smt.Nagaveni G.H., learned counsel appearing for the petitioner, Sri.Parikshit S.S., learned counsel appearing for the respondent. 2. The petitioner - a tenant is the defendant in O.S.No.792/2020, in a suit instituted by the respondent- landlord seeking ejectment. The issue in the lis does not pertain to the merit of the matter. The petitioner-tenant files an application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, seeking appointment of a Commissioner to verify certain factors about the property, in which he himself is a tenant. The concerned Court by a reasoned order rejects the application, rejection of which has driven the petitioner to this Court in the subject petition. 3. Learned counsel appearing for the petitioner would vehemently contend that appointment of a Commissioner is - 3 - HC-KAR NC: 2025:KHC:31299 WP No. 3628 of 2024 imperative in the case at hand, in the light of several disputed questions of fact between the petitioner and respondent qua the landlord and tenant relationship, in that light, the application was filed. The concerned Court ought to have allowed the application. 4. Learned counsel appearing for the respondent takes this Court to the application seeking to contend that the petitioner has already instituted a suit for injunction, against the very plaintiff and the said suit is pending. In the teeth of the said pendency of the suit, the application for appointment of a Commissioner to fetch evidence, could not have been filed and entertained. The concerned Court has appropriately rejected the same, is the submission of the learned counsel for the respondent. 5. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the material on record. - 4 - HC-KAR NC: 2025:KHC:31299 WP No. 3628 of 2024 6. The afore-narrated facts are not in dispute. The concerned Court answers the application by the following Order: "7. Heard. 8. Upon hearing and on perusal of materials placed on record. The following points would arise for consideration of this Court. 1. whether the interlocutory application No.III filed by the defendant under order XXVI rule 9 R/w section 151 of Civil procedure code is deserves to be allowed? 2. What order? 9. Upon hearing and on perusal of the materials on record, this court has proceeds to answer the aforesaid points as hereunder; POINT No.1: In the Negative. POINT No.2: As per the final order for the following; R E A S O N S 10. POINT No.1: The plaintiff has filed this suit for ejectment against the defendant. The plaintiff has sought to direct the defendant to vacate and hand over the vacant possession of the suit schedule property i.e., property bearing No.122, first floor of residential building situated at 9th main, 16th cross, Maruthi nagar, Sonnenahally, Ullal Post, Bengaluru, consisting one hall, Kitchen, two bedrooms with bathroom and toilet with electricity and water facilities with RCC roofing. The plaintiff also sought to direct the defendant to pay the arrears of rent from First June 2018 till filing of this suit at the rate of 5,500/- per month. Now, the present case - 5 - HC-KAR NC: 2025:KHC:31299 WP No. 3628 of 2024 is set down for final arguments. It is pertinent to mentioned here that the defendant has failed to cross examination of Pw.1, also failed to lead defence evidence and not produced any document in support of her case even after granting sufficient time. When the matter is set down for final arguments the defendant has filed this application and sought to appoint the court commissioner to inspect the spot and to submit his report with regard to questions sought for in deciding the dispute between the parties. On the other hand the plaintiff has not filed any objection to present application But brally submits that present application is not maintainable. 11. In the application the defendant has raised the following questions, it read as under; 1) To direct the commissioner to inspect the property bearing No.122, first floor, situated at 9th main, 16th cross, Maruthinagar, Sonnenahally, Ullal Post, Bengaluru-560110 is fully constructed built or not? 2) To direct the Court Commissioner who is/are residing in the property bearing No.122, first 9th. main, 16th cross, floor, situated at Maruthinagar, Sonnenahally, Ullal, Post, Bengaluru? 3) To direct the Court Commissioner to inspect with regard to existence of electricity meter bearing RR No.KID34561 katha No.2992386885 MR code No.14011999 whether the said meter is in existence of property bearing No.122 or 121? 4) To draw the sketch with regarding to existence of the building and/or to take photographs of the building and submit the same? 12. In this above background, this court has carefully perused the provisions of law regarding to appointment of Court Commissioner for local investigation. Under order XXVI rule 9 of Code of Civil Procedure deals with the powers of the court to issue - 6 - HC-KAR NC: 2025:KHC:31299 WP No. 3628 of 2024 commissioner for the purpose of elucidating or clarifying any matter in dispute. 13. The object of local investigation is not to collect the evidence which can be taken in Court, but to obtain evidence which from its very peculiar nature can be had only on the spot, such evidence enables the Court to properly and correctly understand and assess the evidence on record and clarify any point which is left doubtful. It also helps the court in deciding the question in controversy pending before it. This provision contemplates commissioner to make local investigation in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute. 14. This court on careful perusal of entire materials on record, pleadings of both the parties, it appears that the plaintiff has filed this suit for ejectment against the defendant. The plaintiff has sought to direct the defendant to vacate and hand over the vacant possession of the suit schedule property. The plaintiff also sought to direct the defendant to pay the arrears of rent from First June 2018 till filing of this suit at the rate of 5,500/- per month and other reliefs. 15. In the present application, the defendant sought to direct the commissioner to inspect the property bearing No.122 i.e., the suit schedule property is fully constructed built or not. Further the defendant also sought to draw the sketch with regard to the existence of the building and/or to take photographs of the building and to submit the same. In the present suit, the plaintiff pleaded that she is the absolute owner in possession of property bearing No.122, constructed ground floor, first, second and third floor residential building on the said property. Further the plaintiff contended that the defendant is the tenant in respect of the suit schedule property. Under such circumstances, the burden is on the plaintiff to prove that the defendant is the tenant under the plaintiff. Therefore question of appointing a commissioner to inspect the property bearing No122 is fully constructed built or not and draw the sketch with regarding to existence of the building does not arise. - 7 - HC-KAR NC: 2025:KHC:31299 WP No. 3628 of 2024 16. The defendant further sought to direct the court commissioner to who is residing in the property bearing No.122. It is for the parties before the court to prove their possession by producing cogent oral and documentary evidence. It is for the court to decide as to who is in possession based on the materials available before the court and the court cannot delegate its function of giving of findings on possession to the commissioner. Further, it is settled law that the power of appointment of commissioner for local investigation cannot be exercised by the court to enable any party to collect evidence through the commissioner to prove the factum of possession or enjoyment. 17. The defendant also sought to court commissioner to inspect with regard to existence of electricity meter bearing No.KID34561 Katha No.2992386885 MR Code No. 14011999, whether said meter is existence of property No.122 or 121. As stated above the present suit is filed for ejectment. The burden is on the plaintiff to prove that land lord and tenant relationship in between the defendant and plaintiff. The defendant has denied the relationship of landlord and tenant. Under such circumstances, the burden is on the plaintiff to prove the relationship of land lord and tenant. If the above said electricity meters is existence of property No.122 or 121, the defendant can produce documents to prove the same. As stated above, the parties to the suit to prove their contentions by placing cogent documents and convincing evidence. The court commissioner cannot be appointed for the purpose of collecting evidence. Therefore if the court commissioner is appointed for the purpose of electricity meters is existence of property No.122 or 121, it would definitely collection of evidence and fill up the lacuna in the case of the defendant. It cannot be permitted under law. Therefore, there is no reason to allow this application. Accordingly, this court answer the point No.1 in Negative. - 8 - HC-KAR NC: 2025:KHC:31299 WP No. 3628 of 2024 18. POINT No.2: In the result, this court proceed to pass the following: O R D E R The I. A. No.III. filed by the defendant under Order XXVI Rule 9 R/w Section 151 of Code of Civil Procedure is hereby dismissed. No order as to costs." (Emphasis added) The concerned Court by the order impugned holds that the burden to prove the relationship between the landlord and tenant is on the plaintiff. The parties to the suit to prove their contentions, have to place on record cogent documents and convincing evidence and a Court Commissioner cannot be appointed for fetching evidence. 7. The suit is for ejectment. The relationship between the landlord and tenant is not in dispute. The petitioner instituting, another suit for injunction against the respondent is also a matter of record. In the light of the said proceedings pending, it is understandable as to what the Court Commissioner would do with regard to a relationship between the landlord and tenant. The application comes to be filed at - 9 - HC-KAR NC: 2025:KHC:31299 WP No. 3628 of 2024 the stage of arguments in the subject suit. In that light, the concerned Court has appropriately rejected the same by the aforequoted reasoned order. 8. I do not find any perversity in the said order to interfere in the proceeding under Article 227 of the Constitution of India. The petitioner is at liberty to urge all the contentions before the concerned Court in the injunction suit in O.S.No.550/2020. Petition lacking in merit, stands rejected. Sd/- (M.NAGAPRASANNA) JUDGE CBC List No.: 1 Sl No.: 45 CT:SS