- 1 - HC-KAR NC: 2026:KHC:8766 WP No. 11092 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 11092 OF 2025 (GM-CPC) BETWEEN: SRI L.MAHADEVASWAMY S/O LATE M.LINGAPPA, AGED ABOUT 44 YEARS, RESIDING AT NO.188, MARIGUDI BEEDI, ALANAHALLI, MYSURU CITY - 570 028. …PETITIONER (BY SRI Y V PRAKASH, ADVOCATE FOR SRI Y K NARAYANA SHARMA, ADVOCATE) AND: 1. SRI K. NAGESH S/O LATE K S KESHAVAMURTHY AGED ABOUT 84 YEARS. 2. SMT. UMA, W/O DR. K.NAGESH, AGED ABOUT 74 YEARS. RESPONDENT NOS.1 AND 2 ARE RESIDING AT THEIR FARM HOUSE AT HOSA KEMPAIAHANA HUN VILLAGE, KASABA HOBLI, T.NARASIPURA TALUK - 571 124. ALSO AT NO.169, K.E.B.ROAD, BYRAPURA, T.NARASIPURA TOWN-571124. …RESPONDENTS (BY SRI H.C.SHIVARAMU, ADVOCATE) Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:8766 WP No. 11092 of 2025 THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 03.03.2025 PASSED ON I.A.NOS.12 AND 13 PASSED IN O.S.NO.69/2021 BY THE COURT OF SENIOR CIVIL JUDGE, T.NARASIPURA, AS PER ANNEXURE-H AND REJECT THE IA NOS.12 AND 13 FILED BY THE RESPONDENT OR PASS OTHER SUITABLE ORDERS BY ALLOWING THIS WRIT PETITION IN THE INTEREST OF JUSTICE, ETC., THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL ORDER This petition by the defendant in O.S.No.69 of 2021 is directed against the impugned order dated 03.03.2025, whereby the application, I.A.Nos.12 and 13 filed by the respondents/plaintiffs under Order XXVI Rule 9 CPC for appointment of a Court Commissioner was allowed by the Trial Court by holding as under: "Advocate for plaintiff has filed IA No.9 under Section 151 CPC to re open the stage for further evidence of PW-1; IA No.10 under Order XVIII Rule 17 CPC to recall PW-1 for the said purpose; IA Nos.11 and 14 under Order VII Rule 14(3) CPC to produce the documents in the evidence of PW-1; IA - 3 - HC-KAR NC: 2026:KHC:8766 WP No. 11092 of 2025 No.12 under Order XXVI Rule 9 CPC to appoint the RFO, Department of Forest, T. Narasipura Taluk as a Commissioner to identify the age, number, girth of trees i.e. teak wood, hercules (Yellow teak) standing in the suit property and report the same to the court; IA No.13 under Order XXVI Rule 9 CPC to appoint the Senior Assistant Director, Horticulture Department, T. Narasipura as a Commissioner to identify the age, number of coconut trees and other horticulture trees standing in the suit property and report the same to the court. Advocate for defendant submits no objection to IAs No.9 to 11. But, he has filed objection to IAs No.12 to 14. In objection filed to IAs No.12 and 13, the defendant has contended that the Commissioners can not be appointed to collect evidence; the oral evidence can not be placed to contradict the registered agreement of sale since it is prohibited under Section 92 of the Indian Evidence Act; there is a false allegation on the part of the defendant that the agreement of sale was executed for Rs.1,50,50,000/-. In the objection filed to IA No.14, it is contended that the documents intended to be produced are not necessary to the case and those documents relate to other property and not to suit property. Heard the arguments of both sides and perused the materials on record. Learned counsel for the defendant has filed written arguments in support of IAs No.12 and 13 and the rulings of Hon’ble High Court of Karnataka reported in ILR 2005 KAR 4397 (Sky Lines Advertising (P) Ltd. V/s. National Airport Authority and another) on the principle of law that the oral evidence cannot be accepted to negate the documentary evidence as per Section 92 of the - 4 - HC-KAR NC: 2026:KHC:8766 WP No. 11092 of 2025 Indian Evidence Act; AIR 2007 KANT 133 (Miss Renuka Vs. Sri Thamanna), W.P. No.7271/2017 dated 24.04.2017 (Smt. Puttamadamma and others Vs. Smt. Mahadevamma), W.P. No.9149/2011 dated 09.04.2013 (Sri. G.J Govindashetty Vs. Sri Jagadeesha and others) and W.P. No.112948/2024 dated 06.01.2015 (Madivalappa Vs. Neelavva) on the principle of law that the commissioner cannot be appointed to collect evidence. It is the case of the plaintiff as found from the plaint that the sale deed and agreement of sale dated 26.07.2021 are to be canceled since they were executed on the grounds of misrepresentation and fraud and consequently, the defendant is to re convey the suit property to the plaintiff by canceling those deeds. It is also the case of the plaintiff that the suit property has fetched Rs.1,51,50,000/-. But, those deeds were executed only for Rs.11,00,000/- which is small amount. Further, there are good number of trees of teak, hercules and coconut in the suit property and the value of them is more than Rs.1.50 cores. The defendant has denied the said contention of the plaintiff. It is for the plaintiff to prove that the suit property and trees alleged to be in existence therein have fetched more than Rs.1.50 cores. The plaintiff has already let his oral evidence. He has relied upon the copy of the letter dated 12.08.2024 that the Senior Assistant Director of Horticulture, T. Narasipura informed him to get the order of the court to issue the value certificate of the coconut trees standing in the suit property. Therefore, having considered the fact in dispute and the above document and other materials on record, I am of an opinion that the appointment of commissioner sought in I.As. No.12 - 5 - HC-KAR NC: 2026:KHC:8766 WP No. 11092 of 2025 and 13 does not amount to collection of evidence rather it enables this court to go for complete and effective adjudication of the case. Relating to I.A No.14, the documents to be produced by the side of the plaintiff in the evidence can be tested by the side of the defendant in the cross examination. Mere production of them in evidence does not take away the defence of the defendant and mere marking of them does not amount to proof. Accordingly, I.As. No.9 to 14 are allowed on cost of Rs.500/- relating to I.As. No.9 to 11 and 14. The officials named in I.As. No.12 and 13 are appointed as the court commissioners for the purpose mentioned in I.As. The commissioner fee of Rs.5000/- each is fixed to them. The commissioners are to visit the spot, have local inspection and submit the report as prayed in I.As if comply. The plaintiff is to submit the memo of instruction to the commissioners if any in the office. Issue the warrant to the commissioners if comply. Await commissioner report by 16.04.2025". 2. Upon re-appreciation, re-evaluation and re- consideration of the entire material on record, I am of the considered opinion that the impugned order passed by the Trial Court cannot be said to suffer from any illegality or infirmity, nor can the same be said to be capricious or - 6 - HC-KAR NC: 2026:KHC:8766 WP No. 11092 of 2025 perverse or as having resulted in miscarriage of justice, warranting interference by this Court, in the exercise of its jurisdiction under Article 227 of the Constitution of India as held in the case of (i) Radhey Shyam & others Vs. Chhabi Nath & others (2015) 5 SCC 423 (ii) K.P.Natarajan & others Vs. Muthalammal & others AIR 2021 SC 3443 (iii) Mohammed Ali Vs. Jaya (2022) 10 SCC 477. At any rate, since the petitioner would be entitled to file memo of instructions before the Court Commissioner as well as objections, if any, to the report of the Court Commissioner and examine/cross-examine him, if he so intends, it cannot be said that any prejudice would be caused to the petitioner by the impugned order and as such, I do not find any merit in the petition and the same is hereby disposed of without interfering with the impugned order. Hence, I pass the following: ORDER i) Petition is hereby disposed of without interfering with the impugned order. - 7 - HC-KAR NC: 2026:KHC:8766 WP No. 11092 of 2025 ii) Liberty is reserved in favour of both parties to file their respective memos of instructions before the Court Commissioner. iii) Liberty is also reserved in favour of the parties to file objections to the report of the Court Commissioner and examine/cross-examine him, if they so desire. iv) All rival contentions on all aspects of the matter including the report of the Court Commissioner and evidence collected by him are kept open and no opinion is expressed on the merits/de-merits of the rival contentions. Sd/- (S.R.KRISHNA KUMAR) JUDGE DH List No.: 3 Sl No.: 61