- 1 - HC-KAR NC: 2025:KHC:49318 WP No. 17708 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 17708 OF 2024 (GM-CPC) BETWEEN: P GANESH RAO, S/O P SHIVARAMA RAO, AGED ABOUT 73 YEARS, CAMERAMAN GRADE-1, KENDRA DHARMPURA-1, JAGADHALPUR, CHATTISGHAT-494 005, REP. BY HIS GPA HOLDER, SMT. PUSHPA C RAO, W/O LATE P CHANDRASHEKHARA, AGED ABOUT 78 YEARS, C/O RAGHURAMA HEGDE, BOLWAR BAILU, URLANDI, PUTTUR KASBA VILLAGE, PUTTUR TALUK, D.K DISTRICT-574 201. …PETITIONER (BY SRI. SACHIN B S., ADVOCATE) AND: 1. KANTHAPPA POOJARY, S/O SHESHAPPA POOJARY, HINDU, BILLAVA, AGED ABOUT 58 YEARS, R/AT KADLA HOUSE, BALNAD VILLAGE, PUTTUR TALUK, D K DISTRICT-574 201, 2. BALAKRISHNA RAI, SINCE DEAD MRS. LEELAVATHI B RAI, Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:49318 WP No. 17708 of 2024 W/O LATE K BALAKRISHNA RAI, MAJOR, R/AT SHIVA KRIPA, CHOKKADI, ARNARAMUDNOOR, SULLIA TALUK, D K DISTRICT-574 239. 3. MRS. POORNIMA S ALVA, W/O SHIVAPRASAD ALVA, MAJOR, ASSISTANT PUBLIC PROSECUTOR, BELTHANGADY, BELTHANGADY TALUK, D K DISTRICT-574 214. 4. PRAMOD KUMAR RAI, SINCE DEAD MRS. PRAMEELA, W/O LATE PRAMOD KUMAR RAI, AGED ABOUT 48 YEARS, R/AT RAGHAVENDRA MUTT, KALLARE, PUTTUR KASBA, D K DISTRICT-574 201. 5. MASTER PRATHAM, S/O LATE PRAMOD KUMAR RAI, AGED ABOUT 28 YEARS, R/AT RAGHAVENDRA MUTT, KALLARE, PUTTUR KASABA, D K DISTRICT-574 201. …RESPONDENTS (BY SRI. P. RAVINDRAN., ADVOCATE FOR R1(ABSENT), R2 TO R5 – SERVED AND UNREPRESENTED) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INIDA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 26/02/2024 PASSED ON IA NO. 19 IN OS NO. 69 OF 2001 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, PUTTUR AS PER ANNEXURE-A AND CONSEQUENTLY ALLOW THE IA NO. 19 AS PRAYED FOR AND GRANT AN INTERIM ORDER TO STAY FURTHER PROCEEDINGS OS NO. 69 - 3 - HC-KAR NC: 2025:KHC:49318 WP No. 17708 of 2024 OF 2001 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, PUTTUR, PURSUANT TO IMPUGNED ORDER DATED 26/02/2024 PASSED ON IA NO. 19 AS PER ANNEXURE-A TILL DISPOSAL OF THE PETITION. 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 The plaintiff is before this Court under Article 227 of Constitution of India with a prayer to set aside the order dated 26.02.2024 passed on I.A.No.19 in O.S.No.69/2001 by the Court of Principal Civil Judge, Puttur. 2. Heard the learned counsel appearing for the petitioner. 3. There is no representation on behalf of the respondents. 4. The petitioner has filed O.S.No.69/2001 before the jurisdictional Civil Court at Puttur with a prayer to declare the sale deed alleged to be executed on 10.03.1998 by defendant No.2 in favour of defendant No.1 as invalid and consequently to restrain defendant No.1 from interfering with his lawful possession of suit schedule 'A' properties. - 4 - HC-KAR NC: 2025:KHC:49318 WP No. 17708 of 2024 5. The said suit was contested by the defendants by filing written statement. The Trial Court had earlier dismissed O.S.No.69/2001. The plaintiff had challenged the said decree in R.A.No.13/2009 before the First Appellate Court and the said appeal was allowed and the matter was remitted to the Trial Court with a direction to appoint a Court Commissioner. Thereafter, the Trial Court had appointed the Taluk Surveyor as the Court Commissioner, who had submitted his report on 13.03.2019. Objection was filed to the said report by both the parties. 6. I.A.No.19 was filed on behalf of the plaintiff to permit him to cross-examine the Court Commissioner who was examined before the Trial Court. The said application was opposed by defendant No.1 and the Trial Court vide order impugned has rejected I.A.No.19. Being aggrieved by the same, plaintiff is before this Court. 7. Learned counsel for the petitioner submits that Trial Court having given an opportunity to the defendant No.1 to cross-examine the Court Commissioner, was not justified in rejecting I.A.No.19. An opportunity of fair trial is being denied - 5 - HC-KAR NC: 2025:KHC:49318 WP No. 17708 of 2024 to the petitioner and in the said event the case of the petitioner is likely to be prejudiced. 8. Perusal of the material on record would go to show that the judgment and decree passed in O.S.No.69/2001, dismissing the suit was set aside in R.A.No.13/2009 with a direction to the Trial Court to appoint Court Commissioner for the purpose of visiting the suit schedule property and submitting the report. 9. It appears that after the matter was remanded to the Trial Court, the Taluk Surveyor was appointed as Court Commissioner in O.S.No.69/2001 and the Court Commissioner has submitted his report on 13.03.2019. The parties to the suit have filed their objections to the said report. 10. I.A.No.15 was filed on behalf of defendant No.1 to permit him to cross-examine the Court Commissioner. Said application was opposed by the petitioner on the ground that there is no confusion in the Court Commissioner's report and therefore his cross-examination is not necessary. However, the Trial Court had allowed I.A.No.15 and permitted defendant No.1 to cross-examine the Court Commissioner. After the Court - 6 - HC-KAR NC: 2025:KHC:49318 WP No. 17708 of 2024 Commissioner was examined on behalf of defendant No.1, I.A.No.19 was filed by the petitioner seeking permission of the Trial Court to permit the plaintiff to cross-examine the Court Commissioner. The said application was opposed by defendant No.1 contending that the petitioner had lost his right to cross- examine the Court Commissioner. After the cross-examination of the Court Commissioner by defendant No.1, it is not permissible for the petitioner/plaintiff to cross-examine the Court Commissioner. 11. Cross-examination of the witness is permitted in the event, the party examined or the witness of the party who is examined is adverse to the other party. It is trite that evidence cannot be used against a party without granting proper opportunity to the said party to cross-examine the witness. Cross-examination of a witness is provided to elicit the truth from him. The fundamental principle is that no evidence should be admitted against a party who had no opportunity to test it through cross-examination. Merely for the reason that the petitioner had initially not opted to cross-examine the Court Commissioner, his prayer for permitting him to cross-examine the Court Commissioner cannot be rejected, if it is found that - 7 - HC-KAR NC: 2025:KHC:49318 WP No. 17708 of 2024 certain material adverse to the interest of the petitioner exists in the evidence of the Court Commissioner. The Trial Court therefore was not justified in rejecting I.A.No.19. 12. Hence the following: ORDER (i) The Writ Petition is allowed. (ii) The order impugned dated 26.02.2024 passed on I.A.No.19 in O.S.No.69/2001 is set aside. Consequently the prayer made in I.A.No.19 is granted. (iii) Since the suit is of the year 2001, the Trial Court shall make endeavour to dispose of the suit as expeditiously as possible. Sd/- (S VISHWAJITH SHETTY) JUDGE GVP List No.: 1 Sl No.: 41