- 1 - HC-KAR NC: 2026:KHC:8077 WP No. 23122 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 23122 OF 2023 (GM-CPC) BETWEEN: SRI LOKESH S/O THOPEGOWDA, AGED ABOUT 57 YEARS, R/O MARATA GALLI, DASAPPA VATARA, JANNAPURA, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT. REP BY HIS GPA HOLDER SMT VEDAVATHI, WIFE OF SRI LOKESH, AGED ABOUT 49 YEARS, R/O MARATA GALLI DASAPPA VATARA, JANNAPURA, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT-577301 …PETITIONER (BY SRI. KARTHIK S TAYUR.,ADVOCATE) AND: 1. SMT. ANASUYAMMA W/O BOREGOWDA, AGED ABOUT 66 YEARS, R/O ANTHARAGANGE MAIN ROAD, BARANDURU POST, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT-577245. 2. CHANDRAKALA W/O LAKSHMANA, AGED ABOUT 43 YEARS, R/O MARATA GALLI, JANNAPURA, BHADRAVATHI TALUK, Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:8077 WP No. 23122 of 2023 SHIVAMOGGA DISTRICT-577245 …RESPONDENTS (BY SMT. SANGEETHA M. MANJUNATH FOR; SRI. ABHISHEK KUMAR, ADVOCATE FOR R1 & R2) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE ORDER IN OS 230/2015 BY THE PRINCIPAL CIVIL JDUGE ADN JMFC AT BHADRAVATHI DATED:05.04.2023 (ANNX –D) DTD 25/09/2023 (ANNEXURE-F) DISMISSING IAs NO.17 & 18 FOR THE APPOINTMENT OF COURT COMMISSIONER, AND ALLOW THE IA NO. 18 FILED BY THE PETITIONER, PRAYING FOR THE APPOINTMENT OF COURT COMMISSIONER TO SURVEY AND REPORT ON THE SUIT SCHEDULE PROPERTY AS TO THE EXISTENCE OF COMMON PASSAGE WAY/ OONI AND ANY OTHER ALTERNATIVE ROAD OR ACCESS TO THE PETITIONERS SUIT SCHEDULE PROPERTY. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ - GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL ORDER This petition by the plaintiff in O.S.No.230/2015 on the file of the Principal Civil Judge and JMFC, Badravathi, Shivamogga District, is directed against the impugned order dated 25.09.2023, whereby the application I.A.No.18 filed by the petitioner-plaintiff under Order XXVI Rule 9 CPC was dismissed by the trial Court. 2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record. - 3 - HC-KAR NC: 2026:KHC:8077 WP No. 23122 of 2023 3. A perusal of the material on record will indicate that the petitioner-plaintiff instituted the aforesaid suit against the respondents-defendants for permanent injunction and other reliefs in relation to the suit schedule immovable property. The said suit is being contested by the respondents-defendants. After completion of evidence, the petitioner filed the instant application under Order XXVI Rule 9 CPC seeking appointment of Court Commissioner to conduct local inspection. The said application having been opposed by the respondent, the Trial Court proceeded to pass the impugned order rejecting the application, aggrieved by which, the petitioner is before this Court by way of the present petition. 4. A perusal of the impugned order will indicate that despite having referred to the principles enunciated by this Court in the case of Shadaksharappa vs. Kumari Vijayalaxmi - 2023 SCC Online Kar 53, the trial Court rejected the application only on the ground that an earlier application at an earlier point in time filed by the petitioner for appointment of a Court Commissioner had been rejected. So also, the trial Court came to the conclusion that the material on record was sufficient and there was no necessity to appoint a Court Commissioner. In this context, it is relevant to state - 4 - HC-KAR NC: 2026:KHC:8077 WP No. 23122 of 2023 that while according to the petitioner-plaintiff there exists only one road leading to the suit schedule property, the said contention is disputed by the respondents, who contend that there are several roads. In this context, the trial Court failed to consider and appreciate that the existence of access to the suit schedule property is a subject matter of dispute involved in the suit which could be elucidated only by appointment of a Court Commissioner to conduct local inspection and failure on the part of the trial Court to appreciate this has resulted in erroneous conclusion. 5. Under these circumstances, in the light of the principles enunciated by the Co-ordinate Bench of this Court, in the Shadaksharappa’s case supra, I am of the considered opinion that no prejudice can be said to have been caused to the respondent if the application for appointment of Court Commissioner is allowed by leaving open all contentions to be decided by the trial Court in accordance with law. 6. In the result, I pass the following: ORDER i) The petition is hereby allowed. - 5 - HC-KAR NC: 2026:KHC:8077 WP No. 23122 of 2023 ii) The impugned order dated 25.09.2023 on I.A.No.XVIII in O.S.No.230/2015 on the file of the Principal Civil Judge and JMFC, Badravathi, Shivamogga District is hereby set asid. iii) I.A.No.XVIII under Order XXVI Rule 9 of CPC is hereby allowed. iv) Liberty is reserved to file memo of instructions to the Court Commissioner. v) Liberty is reserved to file objections to Court Commissioner and examine/cross-examine the Court Commissioner after submission of report. vi) The Trial Court is directed to dispose of the suit within a period of six months from the date of receipt of copy of this order. vii) All rival contentions on all aspects of the matter including the Commissioner’s report and evidence are kept open and no opinion is expressed on the same. Sd/- (S.R.KRISHNA KUMAR) JUDGE MDS List No.: 1 Sl No.: 34