- 1 - HC-KAR NC: 2026:KHC:8498 WP No. 16611 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 16611 OF 2025 (GM-CPC) BETWEEN: SRI DIWAKAR S. SHETTY, AGED ABOUT 68 YEARS, S/O. LATE KRISHNI SHETTY, POST SEETHANADI – 576 112, NADPAL VILLAGE, HEBRI TALUK, UDUPI DISTRICT. …PETITIONER (BY SRI. K. CHANDRANATH ARIGA, ADVOCATE) AND: 1. SMT. HEMAVATHI SHETTY AGED ABOUT 81 YEARS, D/O LATE KRISHNI SHETTY, TADEKALLU, POST: NEELAVARA VILLAGE – 576 213 BRAHMAVAR TALUK, UDUPI DISTRICT. 2. SMT. LEELAVATHI SHETTY AGED ABOUT 77 YEARS D/O LATE KRISHNI SHETTY UJANDARU HOUSE POST: HAVANJE VILLAGE – 576 124 BRAHMAVAR TALUK, UDUPI DISTRICT. 3. SMT. RATHNA S. SHETTY AGED ABOUT 75 YEARS D/O LATE KRISHNI SHETTY NO.183, CHALUVA KRISHNA DEVARAJ ARS BADAVANE, 9TH CROSS, VINNOBAAGARA, SHIVMOGGA – 577 204. Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:8498 WP No. 16611 of 2025 4. SMT. CHANDRAVATHI S. SHETTY AGED ABOUT 73 YEARS D/O LATE KRISHNI SHETTY D. NO. 3-3-92H, AMBALAPADY MAIN ROAD, POST AMBALAPADY VILLAGE – 576 103 UDUPI TALUK AND DISTRICT. 5. SMT. SAROJA SHETTY AGED ABOUT 68 YEARS D/O LATE KRISHNI SHETTY KEERANAKERE, MAKIMANE, THIRTHAHALLI, SHIVAMOGGA – 577 415. 6. JAYARAA SHETTY AGED ABOUT 63 YEARS D/O LATE KRISHNI SHETTY, D. NO.3-3-92H, AMBALAPADY MAIN ROAD POST: AMBALAPADY VILLAGE – 576 103 UDUPI TALUK AND DISTRICT. 7. SMT. SHYAMALA V. SHETTY AGED ABOUT 63 YEARS D/O LATE KRISHNI SHETTY VINAMRATHA, ANANTH NAGAR, HOSUR, POST: HEBRI – 576 112 HEBRI TALUK, UDUPI DISTRICT. 8. SMT. JAYALAKSMI N. SHETTY, AGED ABOUT 61 YEARS D/O LATE KRISHI SHETTY, “SRI RAMA RAKSHA”, D. NO.3-3-92H, AMBALAPADY MAIN ROAD POST: AMBALAPADY VILLAGE – 576 103 UDUPI TALUK AND DISTRICT. 9. K. MAHABALA SHETTY AGED ABOUT 86 YEARS S/O LATE SIDDHU SHETTY D. NO. 1-58, KELAMANE, PARIKA, NEAR MAHALINGESHWARA TEMPLE POST: ATHRADY VILLAGE – 576 107 UDUPI TALUK AND DISTRICT - 3 - HC-KAR NC: 2026:KHC:8498 WP No. 16611 of 2025 10. SHIVAPRASAD SHETTY AGED ABOUT 54 YEARS S/O K. MAHABALA SHETTY D. NO. 1-58, KELAMANE, PARIKA, NEAR MAHALINGESHWARA TEMPLE POST: ATHRADY VILLAGE – 576 107 UDUPI TALUK AND DISTRICT. 11. MADHUPRASAD SHETTY AGED ABOUT 52 YEARS S/O K. MAHABALA SHETTY NO.21, ROYAL SHELTERS, PHASE 3, DEVARACHIKKANA HALLI, 11MB POST, BANGALORE SOUTH BANNERGHATTA ROAD SOUTH BANGALORE – 576 076 12. SHARADAPRASAD SHETTY AGED ABOUT 50 YEARS S/O K. MAHABALA SHETTY 1-180 NAIDILE, PARIKA NEAR SRI MAHALINGESHWARA TEMPLE ROAD, ATHRADY, UDUPI TALUK – 576 107 UDUPI DISTRICT. 13. NARENDRA K. SHETTY AGED ABOUT 53 YEARS S/O. KARUNAKAR SHETTY D.G. NO.3, KANAKAPURA ROAD G.R. GRAND RESIDENCY, J.P. NAGARA 6TH PHASE, BANGALORE SOUTH – 560 078. 14. SMT. JYOTHI P. SHETTY AGED ABOUT 49 YEARS D/O KARUNAKAR SHETTY FLAT NO.194, 132/1, AKUL PRIDE, 3RD CROSS, 5TH MAIN, NEAR BHARATH PETROL BUNK, PAPAIAH LAYOUT, KASTURI NAGAR, HORAMAVU, BANGALURU NORTH – 560 043 …RESPONDENTS (BY SRI. K. PRASANNA SHETTY, ADVOCATE) - 4 - HC-KAR NC: 2026:KHC:8498 WP No. 16611 of 2025 THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 07.04.2025 O.S.NO.115/2022 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM UDUPI (ANNEXURE-J) AND 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.115/2022 on the file of the Principal Senior Civil Judge and CJM, Udupi (for short “the Trial Court) is directed against the impugned order dated 07.04.2025, whereby the application filed by the petitioner defendant under Order XXVI Rule 1 CPC to appoint Advocate Commissioner to record the evidence of the petitioner-defendant, Sri. Diwakar S. Shetty in his house at Nadpal Village, Karkala Taluk, Udupi District, was rejected by the Trial Court. 2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record. 3. A perusal of the material on record will indicate that the respondents-plaintiffs instituted the aforesaid suit against the petitioner-defendant for partition and separate possession of their alleged shares in the suit schedule immovable properties and for - 5 - HC-KAR NC: 2026:KHC:8498 WP No. 16611 of 2025 other reliefs. In the said suit, which is being contested by the petitioner-defendant, the respondents-plaintiffs adduced evidence, pursuant to which the matter was posted for evidence of the petitioner-defendant, who instead of appearing physically before the Trial Court, filed an application under Order XXVI Rule 1 CPC to appoint an Advocate Commissioner to examine him on commission at his residence inter alia contending that he was aged about 68 years and that due to ailments he was not in a position to walk and attend the Court for the purpose of tendering and adducing evidence in person. The said application having been opposed by the respondents-plaintiffs, the Trial Court proceeded to pass the impugned order rejecting the application on the ground that medical certificate is not produced by the petitioner. 4. In this context, it is pertinent to note that the Trial Court has adopted a hyper technical approach in failing to appreciate that no prejudice would be caused to the respondents-plaintiffs if the petitioner is permitted to be examined on commission at his residence, especially when the entire cost in this regard would be borne by the petitioner-defendant and the same would expedite the trial and disposal of the suit. Under these circumstances, I deem it - 6 - HC-KAR NC: 2026:KHC:8498 WP No. 16611 of 2025 just and appropriate to set aside the impugned order and allow the application by imposing certain directions. 5. In the result, I pass the following: ORDER (i) The petition is allowed. (ii) The impugned order dated 07.04.2025 passed in O.S.No115/2022 by the Principal Senior Civil Judge and CJM, Udupi, is hereby set aside. (iii) The application filed under Order XXVI Rule 1 r/w. Section 151 CPC is allowed. (iv) The Trial Court is directed to appoint a Court Commissioner to examine the petitioner-defendant on commission at his residence at Nadpal Village, Karkala Taluk, Udupi District. (v) The entire expenses incurred for the purpose of examination of the petitioner-defendant on commission shall be borne solely by the petitioner-respondent and the respondents-plaintiffs would not be liable to pay any amount in this regard. - 7 - HC-KAR NC: 2026:KHC:8498 WP No. 16611 of 2025 (vi) The Trial Court is directed to appoint a Court Commissioner and secure evidence of the petitioner and dispose of the suit, as expeditiously as possible and preferably, within a period of six months from the date of receipt of a copy of this order. (vii) All rival contentions on all aspects of the matter are kept/left open and no opinion is expressed on merits/demerits of the rival contentions. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC List No.: 3 Sl No.: 9