- 1 - HC-KAR NC: 2026:KHC:30138 WP No. 28743 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JUNE, 2026 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 28743 OF 2024 (GM-CPC) BETWEEN: 1. MADHU S/O. SOMASHEKARAPPA AGED ABOUT 42 YEARS R/A GUBBIHALLI VILLAGE, SAKHARAYAPATANA HOBLI, KADUR TALUK, CHIKKAMAGALUR DIST. …PETITIONER (BY SRI. SWAROOP S.,ADVOCATE) AND: 1. SRI LAVA K S/O K.S LATE KATYAPPA, AGED ABOUT 42 YEARS, R/A. JIGANEHALLI VILLAGE, KASABA HOBLI, KADUR TALUK, CHIKAMAGALUR DISTRICT …RESPONDENT (BY SRI. PRAKASH M H.,ADVOCATE) THIS WRIT PETITON IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD. 02.09.2024 AT ANNEXURE-A PASSED BY THE PRL.CIVIL JUDGE AND JMFC, KADUR IN O.S.NO.567/2023 REJECTING IN IA NO.8 FILED UNDER ORDER XXVI RULE 9 OF CPC FILED BY THE PETITIONER ISSUING A WRIT OF CERTIORARI AND ALLOW THE I.A.NO.8 FILED BY THE PETITIONER UNDER ORDER XXVI RULE 9 OF CPC IN O.S.NO. 567/2023 PENDING ON THE FILE OF PRL CIVIL JUDGE AND JMFC, KADUR AND ETC. THIS PETITION, COMING ON FOR PRL. HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:30138 WP No. 28743 of 2024 CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order passed in I.A.No.8 in O.S.No.567/2023 dated 02.09.2024 by III Additional Civil Judge and JMFC, Kadur, the petitioner/plaintiff is before this Court. 2. The plaintiff had filed the suit seeking permanent injunction and along with the suit he has filed IA No.1 seeking interim injunction. Pending consideration of that application, the petitioner has filed the present IA under Order XXVI Rule 9 CPC to appoint the Court Commissioner to find out the position of plaint schedule property bearing Sy.No.1 measuring 1 acre 12 guntas of Karehallikavalu village, Kasaba Hobli, Kadur Taluk and to find out property in Sy.No.126 of the defendant measuring 1 acre 38.08 guntas of Karehalli Kavalu village, Kasaba Hobli and submit report about the existence of the property. That came to be rejected by way of order impugned. While dismissing the same, the Court has observed that on perusal of the application it indicates that, the plaintiff has filed - 3 - HC-KAR NC: 2026:KHC:30138 WP No. 28743 of 2024 present application to ascertain the location of the property in a suit for bare injunction the plaintiff has to prove the possession by producing the necessary documents and evidence. But in the present IA, the very prayer of the plaintiff is to appoint the Surveyor whether the said property is existing or not. If the Court allows the application, it would amounts to collection of evidence and accordingly rejected. 3. Learned counsel appearing on behalf of the petitioner submits that now the issues are framed and even the application that is filed seeking for injunction is dismissed and this application can be allowed. He had relied on an order passed by this Court in WP No.25580/2016(GM-CPC) in case of T.M.Srinivasamurthy Vs. Vinayaka Naik and another dated 16.01.2017. He relied on paragraph Nos.7 and 8, which reads thus: “7. Having heard the learned Counsel appearing for parties and keeping in mind the respective submissions made by them with regard to the location of the suit schedule property and Sy.No.11/1 in respect of which the petitioner has claimed to have purchased the site and the same being adjoining to each other, it is noted that the burden is cast on the respondent – plaintiffs to prove their case. They have sought for a dual relief, one, is for - 4 - HC-KAR NC: 2026:KHC:30138 WP No. 28743 of 2024 permanent injunction and the other, is for a mandatory injunction as against the defendants. Therefore, the plaintiffs would have to establish that they are in lawful possession of the suit schedule property and that the defendant has interfered with their possession and that the defendant has in fact put up an illegal construction on the said property. In order to establish those facts, the respondent-plaintiffs sought appointment of the Court commissioner. The mere appointment of court commissioner as well as the submission of the report would not imply that either the case of the plaintiffs or the case of the defendant is established. The commissioner’s report would have to be considered by the Trial Court as an additional piece of evidence and thereafter the matter is to be adjudicated. Hence, if the respondent- plaintiffs have sought for appointment of court commissioner in order to establish their case and the Trial Court has ordered the appointment of Court Commissioner, I do not find any infirmity in the said direction being issued by the Trial Court. 8. Further, when it is the specific case of the petitioner herein that the suit schedule property is not in existence by which it is implied that it does not belong to the respondent – plaintiffs, then that is a matter to be established by the defendant and on the basis of the same, the Trial Court would have to give its finding. Therefore, mere appointment of a commissioner would not lead to any implication with regard to the final adjudication of the matter. If the Trial Court has exercised its discretion to appoint court commissioner to seek further evidence in the matter, I do not find that any different view could be taken in the case as the Trial Court which is seized of the entire suit has exercised its discretion to do so. Therefore, I do not find any infirmity in the order of the Trial Court. There is no merit in the writ petition. Writ petition is dismissed.” - 5 - HC-KAR NC: 2026:KHC:30138 WP No. 28743 of 2024 4. He has also relied on another order passed by the Telangana High Court in Civil Revision Petition No.572/2023. He relied on paragraph No.12, which reads as follows: “The legal principle that can be culled out from the above citation is that there is no legal embargo for appointment of Advocate Commissioner even in a bare suit for injunction when there is a serious dispute with regard to the identity and localization of the suit schedule land. The Advocate Commissioner can be appointed at any stage of the suit depending on the facts and circumstances of each case. The trial Court is free to appoint an Advocate Commissioner to resolve the issue involved. In this particular case, there is a serious dispute with regard to the identity and localization of the property and the order passed by the trial Court cannot befaulted with, which warrants any interference by this Court. Moreover, if an Advocate Commissioner is appointed and the suit schedule land is localized, it will resolve the issue between the parties once for all and the Court will be in a position to decide the lis between the parties more effectively. The appointment of an Advocate Commissioner for the purpose of surveying and localization of the suit schedule land when there is a serious dispute with regard to the identity of the property and in which Survey Number it is falling, cannot by any stretch of imagination be construed as gathering of evidence. Having regard to the above, this Court does not find any infirmity in the order passed by the trial Court which warrants any interference. The present Civil Revision Petition is devoid of merits and is liable to be dismissed.” Learned counsel submits that the Court ought to have appointed the Court Commissioner. - 6 - HC-KAR NC: 2026:KHC:30138 WP No. 28743 of 2024 5. Learned counsel appearing on behalf of the respondent submits that the Court has rightly held that it amounts to collection of evidence and rightly dismissed the application. It is submitted that another suit is filed by the defendant seeking injunction. In that suit also similar application is filed and the same is dismissed and there are no grounds to interfere with the well considered order passed by the trial Court. 6. Having heard the learned counsels on either side, perused the material on record. Admittedly petitioner has filed the suit for injunction and when this application is dismissed I.A for interim injunction is pending consideration before the trial Court. The court was right in observing that appointment of a commissioner at this stage amounts to collection of evidence and in a suit for injunction the plaintiff has to prove his case by adducing necessary evidence and at this stage the advocate commissioner cannot be appointed. However, at a later stage, if required, this order will not preclude the petitioner from making an application and at that point of time basing on the facts and circumstances the trial Court can decide the same in - 7 - HC-KAR NC: 2026:KHC:30138 WP No. 28743 of 2024 accordance with law. Accordingly, this Court is passing the following: ORDER i. This Court do not find any infirmity with the order passed by the trial Court. Accordingly, the writ petition is dismissed. ii. However, this order will not preclude the petitioner from filing an application at a later stage and the trial Court shall consider it in accordance with law. iii. All pending I.As., in the writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE PKN List No.: 1 Sl No.: 14