- 1 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.6341/2022 (GM-CPC) BETWEEN: JOHN RODRIGUES AGED ABOUT 52 YEARS S/O LATE P.F. RODRIGUES R/AT. NEAR BALIGA STORES DR. C. MATHIAS ROAD BEJAI, MANGALURU 575004. …PETITIONER (BY SRI. G. BALAKRISHNA SHASTRY, ADV.,) AND: 1. RICHARD RODRIGUES MAJOR S/O LATE VALERIAN RODRIGUES. 2. IVAN RODREGUES MAJOR S/O LATE VALERIAN RODRIGUES. BOTH ARE R/AT DOOR NO.207/1/1 VELANKANNAI VILLAGE, KAVDOOR MANGALURU 575015. Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 3. THE MANGALORE ELECTRICITY SUPPLY COMPANY (MESCON) REP. BY ITS MANAGING DIRECTOR HAVING ITS OFFCIE AT MESCOM BHAVAN, KAVOOR CROSS ROAD BEJAI, MANGALURU 575004. 4. THE SECTION OFFICER MANGALORE ELECTRICITY SUPPLY COMPANY (MESCOM) KAIKAMBA, MANGALURU 574151. …RESPONDENTS (BY SRI. CYRIL PRASAD PAIS, ADV., FOR C/R1 & 2 SRI. H.V. DEVARAJU, ADV., FOR R3 & R4) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD 08.03.2022 IN O.S. NO.310/2019 ON THE FILE OF THE IV ADDL. CIVIL JUDGE AND JMFC, MANGALORE VIDE ANNX-A AND IA NO.6 BE ALLOWED AS PRAYED FOR & ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed challenging the order dated 08.03.2022 passed in O.S.No.310/2019 by the IV Additional Civil Judge and JMFC, Mangalore (for short, ‘the trial Court’). 2. Sri.G.Balakrishna Shastry, learned counsel appearing for the petitioner-plaintiff submits that petitioner-plaintiff has filed the suit against the respondents-defendants for mandatory injunction and damages by specifically contending that the defendants erected the electric pole in the suit schedule property without authority of law and caused damages and sought for the damages in the said suit. The said assertion of the plaintiff in the plaint has been categorically denied by the defendants in the written statement. The parties have adduced the evidence. The evidence of the parties is nothing but a replica of the pleadings and the stand taken. It is submitted that the father of the defendants has filed - 4 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 suit in O.S.No.530/1996 against the petitioner-plaintiff for the relief of declaration and permanent injunction of roadway by prescription and by way of easement of necessity and the said suit was dismissed; thereafter, the Appellate Court reversed the finding and allowed the appeal by decreeing the suit and then in RSA, the suit was dismissed. It is further submitted that the plaintiff before the trial Court is making specific assertion in his pleading that the electrical poles were erected by the defendant Nos.3 and 4 for the benefit of defendant Nos.1 and 2 in the suit schedule property and based on such assertion, Issue No.2 is framed and parties have led the evidence. The evidence of DW-1 is a replica of their written statement. DW2 is the official of the defendant No.3- MESCOM, who has neither spoken anything with regard to the erection of pole in the suit property nor he denies. It is also submitted that the evidence on record creates ambiguity with regard to the existence of the erected pole as to whether those poles are erected in the suit schedule - 5 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 property or not and to find out such factual matrix, the petitioner-plaintiff filed an application seeking to appoint a Court Commissioner to measure the suit schedule properties through a competent surveyor and to locate the putting of electric poles in the suit property and to locate the passing of electric wire over the suit property and to note as to for what purpose the electric connection to the defendants is given. The said application was opposed. The trial Court under the impugned order rejected the said application. It is contended that the parties to the proceedings i.e., plaintiff, is making specific assertion that the poles were erected in the suit schedule property and electric wires were laid above the land of the plaintiff which has been categorically denied by the other side. Hence, it is necessary to find out the assertion made in the plaint. It is further contended that the trial Court has committed an error by assigning reason that the issue with regard to easementary right is pending before this Court, however, in view of the RSA No.279/2013 being allowed, - 6 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 the said reasoning may not be available to sustain the order. It is also contended that the trial Court has further observed that the evidence on record is sufficient to adjudicate the dispute and there is no ambiguity, but the said finding is contrary to the pleading and evidence on record. To substantiate his contention, he placed reliance on the decision of this Court in the case of Sri Shadaksharappa vs. Kumari.Vijayalaxmi and others1 and seeks to allow the petition. 3. Per contra, Sri.Cyril Prasad Pais, learned counsel appearing for the respondent Nos.1 and 2/defendant Nos.1 and 2 supports the impugned order of the trial Court and submits that the trial Court in its impugned order has clearly recorded the finding that the parties have led sufficient evidence and those evidence are sufficient to answer the issues framed and there is no ambiguity with regard to the assertion made by the plaintiff. It is submitted that this is not a case of a 1 W.P.No.201274/2022 DD 24.01.2023 - 7 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 boundary dispute or encroachment to seek appointment of the Court Commissioner. It is further submitted that the case of Sri Shadaksharappa referred supra was a case of encroachment, hence, the said judgment has no application to the case on hand. In order to substantiate his contention, he placed reliance on the decision of this Court in the case of Anitha Dev vs. Susheela Bai2 and submits that the trial Court has applied its judicious mind and exercised discretion and come to the conclusion that the appointment of Court Commissioner is unnecessary and such discretionary order cannot be interfered under Article 227 of the Constitution of India. Hence, he seeks to dismiss the petition. 4. Sri.H.V.Devaraju, learned counsel for the respondent Nos.3 and 4 supports the impugned order of the trial Court and submits that the trial Court has rightly considered the material on record and passed the 2 LAWS(KAR)-2018-8-12 : W.P.No.209/2017 DD 06.08.2018 - 8 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 impugned order which does not call for interference. Hence, he seeks to dismiss the petition. 5. I heard the arguments of learned counsel for the petitioner, learned counsel for the respondent Nos.1 and 2, learned counsel for respondent Nos.3 and 4 and meticulously perused the material available on record. 6. The petitioner-plaintiff has filed the suit against the respondents-defendants for the relief of mandatory injunction that the defendants be directed to remove electric poles installed and the electric cables drawn over the plaint schedule property within a time fixed by the Court and for the relief of damages. To substantiate the said reliefs, the plaintiff in para Nos.4 and 5 of the plaint has made specific pleading that the defendant No.2 applied to the defendant No.3 and 4 for an electric connection to power their irrigation pump set and also to erect electric poles and to draw the service wires over the - 9 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 alleged and disputed road involved in the suit mentioned therein. 7. The gist of the plaint is that the defendants Nos.3 and 4 have erected electric poles to provide electric connection to defendant Nos.1 and 2 by erecting the poles in the suit schedule property and drawn the electric wires over the suit schedule property. The defendant Nos.1 and 2 have denied the said assertion. The trial Court framed the issues in the suit, issue No.2 reads as under: “Whether the plaintiff proves that the defendants have drawn the electric connection over the plaint schedule property illegally?” 8. The parties led the evidence. The plaintiff-PW1 has reiterated the assertion made in the plaint. DW1 has denied the plaint assertion. The evidence of DW2, the Section Officer of MESCOM, clearly indicates that the electric poles are erected, however, his evidence is not clear whether electric poles are erected in the suit schedule property and whether electric wire passes over - 10 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 the suit schedule property. The plaintiff filed an application under Order XXVI Rule 9 of CPC seeking for appointment of Court Commissioner to measure the suit schedule property through a competent surveyor and to locate the erecting of electric poles in the suit schedule property; to locate the passing of electric wires over the suit schedule property and to note as to for what purpose the electric connection to the defendant is given. In my considered view, insofar as third point i.e., the purpose for which electric connection is obtained by the defendant Nos.1 and 2, is concerned, the same can be proved by oral and documentary evidence. Hence, at the outset the said point cannot be considered. 9. It is the specific contention of the petitioner that defendant Nos.3 and 4 have erected the pole in the suit schedule property to provide electric connection to the defendant Nos.1 and 2. Though the said assertion is denied, there is no clear evidence to come to a conclusion as to whether the poles erected are in the suit schedule - 11 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 property or not and whether the electric wire passes over the suit schedule property or not. When things stood thus, in my considered view, the trial Court has committed grave error in coming to the conclusion that there is sufficient evidence to adjudicate on the issue. On perusal of the pleading and evidence on record, in my considered view there is a great doubt with regard to the erection of poles as to whether the same are in the suit schedule property or not and to address such doubt, the Court Commissioner’s report would aid the trial Court in deciding Issue No.2. In my considered view any amount of oral and documentary evidence would not be sufficient to ascertain the factual assertion made by the plaintiff, which is denied by the other side. This Court in the case of Sri Shadaksharappa referred supra at para Nos.9 to 12 has specifically observed that to elucidate the matter in dispute, the report of the Court Commissioner would aid the trial Court and such a report is required to be considered as evidence and denying such an opportunity - 12 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 would amount to denying the party to lead evidence. Keeping in mind the said proposition of law, I am of the considered view that the trial Court has committed grave error in rejecting the application. 10. Insofar as the decision of this Court in the case of Anitha Dev referred supra, this Court has satisfied that there is no error in the impugned order, hence, it has declined to exercise jurisdiction under Article 227 of the Constitution of India by observing that the Court, while declining to appoint a Court Commissioner, has exercised discretion. In my considered view, the said decision has no application to the facts and circumstances of the case on hand as the plaintiff is specifically making assertion that the defendants have erected the pole in the suit schedule property illegally which has been categorically denied by the other side and there is no independent evidence to come to the conclusion with regard to the assertion made by the plaintiff. - 13 - HC-KAR NC: 2026:KHC:30780 W.P. No.6341/2022 11. For the aforementioned reasons, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The impugned order dated 08.03.2022 passed in O.S.No.310/2019 by the IV Additional Civil Judge and JMFC, Mangalore, is set aside. iii. Consequently, I.A.No.6 filed by the plaintiff under Order XXVI Rule 9 of CPC before the trial Court is allowed. The trial Court shall immediately appoint the Court Commissioner fixing the timeline to the Court Commissioner to submit the report. iv. In view of the disposal of the petition, pending IAs., if any, would not survive for consideration. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR/List No.: 1 Sl No.: 13