- 1 - HC-KAR NC: 2026:KHC:19431 W.P. No.4031/2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.4031/2022 (GM-CPC) BETWEEN: SRI. K. KENCHAPPA S/O LATE VEERAPPA AGED ABOUT 47 YEARS SREE VATHSAVA KUTEERA BASAVA MANTAPPA ROAD CHITRADURGA TOWN CHITRADURGA - 577501. …PETITIONER (BY MR. V.B. SIDDARAMAIAH, ADV.,) AND: 1. SRI. R. VEERANNA S/O LATE RAMABHOVI AGED ABOUT 52 YEARS R/O HUVINAHOLE VILLAGE DHARMAPURA HOBLI, HIRIYUR TALUK CHITRADURGA DISTRICT - 577596. 2. SRI. R. JAYARAMAPPA S/O RAMA BHOVI AGED ABOUT 62 YEARS R/O SAMUDRADAHALLY VILLAGE HIRYUR TALUK CHITRADURGA - 577511. 3. SRI. R. VENKATASWAMY S/O RAMA BHOVI AGED ABOUT 60 YEARS Digitally signed by ARSHIFA BAHAR KHANAM Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:19431 W.P. No.4031/2022 R/O SAMUDRADAHALLY VILLAGE HIRYUR TALUK CHITRADURGA - 577511. …RESPONDENTS (BY MS. SHARMILA GOWDA, ADV., FOR MR. RAVINDRA M.R. ADV., FOR R1 V/O/DTD:20.02.2022, NOTICE TO R2 & R3 IS D/W) - - - THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 25.01.2022 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC,AT HIRIYUR IN OS.NO.19/2018,ON IA NO.4, FILED BY THE R1 UNDER ORDER 26 RULE 4(A) OF CPC, PASSED IN THE ORDER SHEET VIDE ANNEXURE-G. REJECT THE APPLICATION FILED BY THE R1 FILED UNDER ORDER 26 RULE 4(A) OF CPC, FOR APPOINTMENT OF COMMISSIONER, IN IA NO.4 ON THE FILE OF THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC AT HIRIYUR IN O.S.NO.19/2018 VIDE ANNEXURE-E & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed challenging the order dated 25.01.2022 passed on I.A.No.4 in O.S.No.19/2018 by the Senior Civil Judge and JMFC, Hiriyur, Chitradurga. 2. The respondent No.1 herein filed P and SC No.1/2017 seeking a declaration that the petitioner is the - 3 - HC-KAR NC: 2026:KHC:19431 W.P. No.4031/2022 successor of the deceased R.Jayamma through Will dated 04.06.2016 and further to pass an order that the petitioner is entitled to all the death benefits of the deceased R.Jayamma as referred in the schedule. The said petition was opposed by the petitioner herein and the other defendants. The same was converted into O.S.No.19/2018. The petitioner filed a written statement in the said suit opposing the claim. The respondent No.1- plaintiff adduced the evidence and intended to examine the attesting witness to the Will dated 04.06.2016 and hence, filed an application in I.A.No.4 under Order XXVI Rule 4(A) read with Section 151 of the Code of Civil Procedure, 1908, seeking appointment of a Court Commissioner to record the evidence of the witnesses on the ground that the witnesses referred in the application are suffering from ill-health. The Trial Court, under the impugned order allowed the application. 3. It is to be noticed that one of the witnesses named Manjula.N is now transferred to Dharwad and is not - 4 - HC-KAR NC: 2026:KHC:19431 W.P. No.4031/2022 residing in the address shown in the application. However, two witnesses referred in the application i.e. V.S.Seetharama and Raju are residing within the jurisdiction of the Trial Court. It is to be noticed that the burden is on the respondent No.1 to prove the Will dated 04.06.2016 and in order to facilitate to discharge the said burden, the Trial Court exercised the discretionary relief by allowing the application, by appointing the Court Commissioner to record the evidence. The Trial Court has also recorded the reasons that the law permits the party to the suit to examine the witness through the Court Commissioner and no prejudice would be caused to the defendant if the witnesses are examined. 4. Noticing that the defendant would have all the opportunity to cross-examine the said witnesses, I am of the considered view that the Trial Court was fully justified in allowing the application. It is needless to observe that the plaintiff-respondent No.1 herein has to bear the cost of - 5 - HC-KAR NC: 2026:KHC:19431 W.P. No.4031/2022 the Court Commissioner as he or she is required to travel to Dharwad to record the evidence of one of the witnesses. 5. With the above observation, the writ petition is dismissed upholding the order dated 25.01.2022 passed by the Trial Court on I.A.No.4 in O.S.No.19/2018. Sd/- (VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 29