- 1 - HC-KAR NC: 2026:KHC:8164 WP No. 27510 of 2024 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.27510 OF 2024 (GM-CPC) BETWEEN: 1. SRI KARIBASAVESHWARA SEVA SAMITHI (R) YEDEHALLI VILLAGE, BHADRAVATHI TALUK, REPRESENTED BY ITS PRESIDENT, C MALLESHAPPA S/O CHANNABASAPPA, AGED ABOUT 80 YEARS, YEDEHALLI VILLAGE, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT 577 227. 2. M SHIVAKUMAR S/O MAHESHWARAPPA, AGED ABOUT 50 YEARS, AGRICULTURIST, R/O YEDEHALLI VILLAGE, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT 577 227. …PETITIONERS (BY MISS. NIREEKSHA D.J., FOR SRI. H.R.SHOWRI, ADVOCATES) AND: 1. SMT. PARVATHAMMA D/O HALAPPA, SIDDAIAH MAJOR, HOUSEHOLD WORK, AGED ABOUT 61 YEARS, R/O YEDEHALLI VILLAGE, HOLEHONNUR HOBLI, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT – 577 227. 2. SMT MEENAKSHAMMA D/O HALAPPA, SIDDAIAH Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:8164 WP No. 27510 of 2024 MAJOR, HOUSEHOLD WORK, AGED ABOUT 58 YEARS, R/O YEDEHALLI VILLAGE, HOLEHONNUR HOBLI, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT – 577 227. 3. YEDEHALLI GRAM PANCHAYAT YEDEHALLI VILLAGE, BHADRAVATHI TALUK – 577 227 IT IS REPRESENTED BY ITS PANCHAYAT DEVELOPMENT OFFICER. …RESPONDENTS (BY SRI. DAYALU K.N., ADVOCATE) THIS W.P. IS FILED UNDER ARTICELS 226 OF THE CONSTITUITON OF INDIA PRAYING TO QUASH THE ORDER DTD. 11.09.2024 PASSED IN OS NO. 367/2020 BY PRINCIPAL CIVIL JUDGE AND JMFC, BHADRAVATI ON I.A.NO.20 FILED BY THE PETITIONER AND UNDER ORDER 26 RULE 9 READ WITH SECTION 151 OF CPC, PRODUCED AT ANNX-F BY ALLOWING THIS WRIT PETITION. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL ORDER This petition by the plaintiffs in O.S.No.367/2020 is directed against the impugned order dated 11.09.2024 passed on I.A.No.20 whereby the application-I.A.No.20 filed by the petitioners under Order XXVI Rule 9 CPC for appointment of a Court Commissioner to conduct local inspection of the plaint schedule property and - 3 - HC-KAR NC: 2026:KHC:8164 WP No. 27510 of 2024 written statement schedule property and to submit a report was rejected by the Trial Court. 2. Heard learned counsel for the petitioners and learned counsel for the respondents and perused the material on record. 3. A perusal of the material on record will indicate that the petitioners-plaintiffs instituted the aforesaid suit against the respondents-defendants in relation to five items of ‘A’ schedule property and two items of ‘B’ schedule property and sought for the following reliefs: “a) Declare that the construction made by the Defendant Nos.1 and 2 over the "B" suit schedule properties is illegal and not according to the law and not any approved plan. b) For Mandatory Injunction to direct the defendant No.1 and 2 remove the illegal structure laid by them over the set back area as well as "B" schedule properties in the cost of them only. c) For permanent injunction restraining the defendant No.1 and 2 and their legal heirs, their agents, servants or anybody acting on their behalf from continue the construction over the "B" schedule property what so ever in any manner. d) Issue direction to the 3rd defendant to demolish the illegal construction over the set back area as well as over the B schedule property. - 4 - HC-KAR NC: 2026:KHC:8164 WP No. 27510 of 2024 e) For court costs and such other reliefs that this Hon’ble Court deems fit to grant under the circumstance of this case.” 4. The defendants filed the written statement interalia disputing and denying the various contentions urged by the plaintiffs and sought for dismissal of the suit. After completion of evidence, at the stage of arguments, the petitioners-plaintiffs filed the instant application seeking appointment of a Court Commissioner to conduct local inspection. The said application having been opposed by the respondents, the Trial Court proceeded to pass the impugned order rejecting the application, aggrieved by which, the petitioners are before this Court by way of the present petition. 5. Learned counsel for respondent Nos.1 and 2 submits that having regard to the reliefs sought for by the plaintiffs in the suit, which was not maintainable, the question of appointing a Court Commissioner would not arise. In my considered opinion, the maintainability of the suit qua the reliefs sought for by the plaintiffs are neither relevant nor material while considering an application for appointment of a Court Commissioner to conduct local - 5 - HC-KAR NC: 2026:KHC:8164 WP No. 27510 of 2024 inspection and the merits / demerits of the rival contentions cannot be gone into by the Court while dealing with an application for appointment of a Court Commissioner and as such, the said contention urged by the learned counsel for respondent Nos.1 and 2 cannot be accepted. 6. Insofar as reliance placed on other suits and litigations between the parties by the learned counsel for respondent Nos.1 and 2 are concerned, the said contention would also fall within the realm of merits / demerits of the rival contentions and the same are also neither relevant nor germane for the purpose of considering an application for appointment of a Court Commissioner and even this contention cannot be accepted. 7. A perusal of the material on record including the impugned order will indicate that the Trial Court has come to the conclusion that the petitioners are not entitled to seek appointment of a Court Commissioner since the same would amount to collection of evidence. The Trial Court also came to the conclusion that the appointment of a Court Commissioner was not required for the purpose of elucidating the issues in controversy between the - 6 - HC-KAR NC: 2026:KHC:8164 WP No. 27510 of 2024 parties and accordingly, proceeded to dismiss the application. In my considered opinion, having regard to the pleadings of the parties, the reliefs sought for and the dispute between the parties as to whether the construction put-up in the suit ‘B’ schedule property is in accordance with law or not and having regard to the principles laid down by the Co-ordinate Bench of this Court in the case of Sri. Shadaksharappa Vs. Kumari Vijayalaxmi & others – 2023 SCC OnLine KAR 53 and the judgment of the Apex Court in the case of Rahul S.Shah vs. Jinendra Kumar Gandhi –(2021) 6 SCC 418, the Trial Court clearly fell in error in rejecting the application filed by the petitioner. It is also pertinent to note that no prejudice would be caused to the respondents-defendants if a Commissioner is appointed to conduct local inspection and submit his report especially when both parties would be entitled to file their memos of instructions, file objections to the Commissioner's report and examine / cross-examine the Commissioner if they so desire. 8. Under these circumstances, in view of the pleadings of the parties which warrant appointment of a Court Commissioner to conduct local inspection, the Trial Court clearly misdirected itself in rejecting the application filed by the petitioner by passing the - 7 - HC-KAR NC: 2026:KHC:8164 WP No. 27510 of 2024 impugned order, which has resulted in miscarriage of justice warranting interference by this Court in the present petition. 9. In the result, I pass the following: ORDER (i) The petition is hereby allowed. (ii) The impugned order dated 11.09.2024 passed on I.A.No.20 in O.S.No.367/2020 by the II Addl. Civil Judge & JMFC, Bhadravathi, is hereby set aside. (iii) I.A.No.20 filed by the plaintiffs is hereby allowed. (iv) The Trial Court is directed to appoint a Court Commissioner for the purpose of conducting local inspection of the plaint ‘A’ and ‘B’ schedule properties and written statement schedule properties. (v) Liberty is reserved in favour of both parties to submit their respective memos of instructions before the Court Commissioner and also file objections, if any, to the Commissioner’s report and examine / cross-examine the Commissioner with reference to his report and evidence collected by him, if they so desire. (vi) All rival contentions on all aspects of the matter including the report and evidence of the Court Commissioner are kept open and no opinion is expressed on the same. - 8 - HC-KAR NC: 2026:KHC:8164 WP No. 27510 of 2024 (vii) It is made clear that mere appointment of a Court Commissioner and submission of his report, would not tantamount to expressing any opinion on the merits / demerits of the rival contentions and the same would necessarily have to be dealt with by the Trial Court in accordance with law. Sd/- (S.R.KRISHNA KUMAR) JUDGE SV List No.: 2 Sl No.: 7