- 1 - HC-KAR NC: 2025:KHC:50906 WP No. 18761 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. 18761 OF 2021 (GM-CPC) BETWEEN: SRISURESHAPPA S/O BASAVANNEPPA HANUMAGUNDESHWRA AGED ABOUT 43 YEARS, R/AT HULAGINAKOPPA SHIKARIPURA TALUK SHIVAMOGGA DISTRICT - 577 428. …PETITIONER (BY SRI VASANTH KUMAR K.M, ADV., FOR SRI SRIKANTH PATIL K, ADV.) AND: 1. SMT. LEELAVATHI W/O DEVENDRAPPA DODMANI AGED ABOUT 42 YEARS. 2. SRI DEVENDRAPPA S/O HALAPPA DODMANI AGED ABOUT 49 YEARS. 3. SRI ERAPPA S/O HALAPPA DODMANI AGED ABOUT 52 YEARS. ALL ARE RESIDING AT HULAGINAKOPPA SHIKARIPURA TALUK SHIVAMOGGA DISTRICT - 577 428. …RESPONDENTS (BY SRI K.V. SATEESHCHANDRA, ADV., FOR R-1; R-2 & R-3 ARE SERVED & UNREPRESENTED) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE THE Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:50906 WP No. 18761 of 2021 ORDER DTD. 22.09.2021 MADE ON I.A. IN O.S.NO.436/2012 PASSED BY THE LEARNED II ADDL. CIVIL JUDGE, AND JMFC, SHIKARIPURA AS THE SAME BEING TOTALLY ARBITRARY, ERRONEOUS AND NOT SUSTAINABLE IN LAW AND ALLOW THE I.A. FILED BY THE PETITIONER (ANNX-A). 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 22.09.2021 passed on IA filed under Order XXVI Rule 9 of CPC in OS No.436/2012 by the Court of II Addl. Civil Judge and JMFC, Shikaripura. 2. Heard the learned counsel for the parties. 3. Petitioner herein has filed OS No.436/2012 before the jurisdictional Civil Court at Shikaripura, seeking the relief of declaration and permanent injunction in respect of the suit schedule property bearing No.114/P, totally measuring 30 x 66 ft. In the said suit, contesting defendant has filed written statement and opposed the suit claim. Application under Order XXVI Rule 9 of CPC is filed on behalf of the plaintiff which was opposed by the defendants by filing objections. The Trial Court - 3 - HC-KAR NC: 2025:KHC:50906 WP No. 18761 of 2021 vide the order impugned has rejected the said application and being aggrieved by the same, the petitioner is before this Court. 4. Perusal of the material on record would go to show that in the schedule given to the plaint, the suit schedule property is described as a site measuring 30 x 66 ft. in which a residential house is existing. Towards eastern side of the plaintiff’s property, the property belonging to the defendants allegedly is situated. The defendant has filed written statement opposing the suit claim and has contended that plaintiff has not produced any material to show that he has got right, title and interest in respect of the suit schedule property totally measuring 30 x 66 ft. Parties have led evidence before the Trial Court based on the issues that were framed and burden of proving all the issues framed in the suit is only as against plaintiff. Application under Order XXVI Rule 9 read with Section 151 of CPC is filed on behalf of the plaintiff to appoint a Court Commissioner for the purpose of conducting local inspection of the suit schedule property and to submit a report. There is no allegation in the - 4 - HC-KAR NC: 2025:KHC:50906 WP No. 18761 of 2021 affidavit which is filed in support of the application about any encroachment of the suit schedule property by the defendant. 5. A perusal of the averments found in the affidavit which is filed in support of the application would go to show that plaintiff wants his property to be identified and boundary fixed by the Court Commissioner. The submission made by learned counsel for respondent No.1/defendant that plaintiff has not produced any documentary evidence to prove his title and possession of the suit schedule property is not seriously disputed by learned counsel for the petitioner. The Trial Court has observed that Court Commissioner cannot be appointed for the purpose of collecting evidence. Considering the aforesaid aspects of the matter, I am of the view that Trial Court was justified in rejecting the application filed on behalf of the plaintiff under Order XXVI Rule 9 of CPC. 6. A reading of Order XXVI Rule 9 of CPC would go to show that appointment of Court Commissioner is the discretion of the Court and if the Court feels that the oral and documentary evidence placed on record by the parties is not sufficient enough to effectively adjudicate the dispute between the - 5 - HC-KAR NC: 2025:KHC:50906 WP No. 18761 of 2021 parties, then the Court can appoint a Court Commissioner, so that the Report of the Court Commissioner would be of assistance for the Court to effectively adjudicate the dispute between the parties. Under the circumstances, I am of the opinion that the order impugned does not call for any interference by this Court. Accordingly, the writ petition is dismissed. 7. Since the suit is of the year 2012, the Trial Court shall expedite the trial and dispose off the suit on merits at the earliest. Sd/- (S VISHWAJITH SHETTY) JUDGE DN List No.: 1 Sl No.: 47