- 1 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 5678 OF 2020 (GM-CPC) BETWEEN: M/S. RENAISSANCE BRINDAVAN APARTMENT OWNERS' WELFARE ASSOCIATION(R) HAVING ITS REGISTERED OFFICE AT RENAISSANCE BRINDAVAN SURVEY NO.13, SUBRAMANYAPURA MAIN ROAD, UTTARAHALLI HOBLI, BANGALORE - 560 061. REPRESENTED BY ITS PRESENT PRESIDENT MR. KESHAV BAPAT S/O MR. VINAYAK BAPAT AGED ABOUT 55 YEARS RESIDING NO.B-305, RENAISSANCE BRINDAVAN APTS, 13, UTTARAHALLI MAIN ROAD, BANGALORE - 560 061. …PETITIONER (BY SRI. MUJTABA H, ADVOCATE) AND: 1. M/S. RENAISSANCE HOLDINGS AND DEVELOPERS PRIVATE LIMITED AND COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT 1965 HAVING ITS REGISTERED OFFICE AT NO.12, Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 18TH CROSS, 6TH MAIN MALLESHWARAM BANGALORE - 560 003 REPRESENTED BY ITS MANAGING DIRECTOR. 2. SRI. U. BOJARAJ S/O SRI. B.P. KOTIAN AGED 89 YEARS RESIDING AT BRINDAVAN FARM SURVEY NO.13, SUBRAMANYAPURA ROAD, UTTARAHALLI, BANGALORE - 560 061. 3. SOWMYA SUVARNA D/O U. BOJARAJ AGED 59 YEARS RESIDING AT 'BRINDAVAN FARM' SURVEY NO. 13, SUBRAMANYAPURA ROAD, UTTARAHALLI, BANGALORE - 560 061. 4. VIRAJ B. SUVARNA S/O U. BHOJRAJ AGED 56 YEARS RESIDING AT 'BRINDAVAN FARM' SURVEY NO. 13 SUBRAMANYAPURA ROAD, UTTARAHALLI, BANGALORE - 560 061. 5. MANOJ B. SUVARNA S/O U. BHOJRAJ AGED ABOUT 54 YEARS RESIDING AT 'BRINDAVAN FARM' SURVEY NO. 13, SUBRAMANYAPURA ROAD, UTTARAHALLI, BANGALORE - 560 061. - 3 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 6. SURAJ B. SUVARNA S/O U. BHOJRAJ AGED 47 YEARS RESIDING AT 'BRINDAVAN FARM' SURVEY NO. 13, SUBRAMANYAPURA ROAD, UTTARAHALLI, BANGALORE - 560 061. …RESPONDENTS (BY MS. OORVI U, ADVOCATE FOR SRI. SIDDHARTH SUMAN, ADVOCATE FOR R1; SRI. T.N. VISHWANATHA, ADVOCATE FOR R2 TO R6) THIS WP IS FILED UNDER ARTICLE 227 OF THE PRAYING TO-QUASH THE ORDER DATED 01.02.2020 PASSED BY THE LEARNED XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-27) ON I.A.NO.14 IN O.S.NO.7299/2011 VIDE ANNEXURE-A AND 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 01.02.2020 passed on I.A.No.14 in O.S.No.7299/2011 by the XII Additional City Civil and Sessions Judge - 4 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 (CCH.No.27), Bengaluru (hereinafter referred to as the 'Trial Court' for short). 2. Sri.Mujtaba H., learned counsel appearing for the petitioner submits that the petitioner/Apartment Owners’ Welfare Association filed a suit for mandatory injunction and other consequential reliefs against the builder and the landowners. In the said suit, after conclusion of the trial, the petitioner filed an application in I.A.No.14 under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’), seeking appointment of a Court Commissioner to conduct a survey and measure the suit schedule property to find out whether Schedule 'A' property forms a part of the suit schedule property or not. It is submitted that the entire case of the plaintiff is that the suit schedule property is of a larger extent and that in the said property, defendant No.1 has developed the property owned by the other defendants. It is further submitted that defendant Nos.2 to 6 have illegally started construction towards the southern - 5 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 side of the suit schedule property by claiming the same to be the property retained by them. The said assertion has been denied by the defendants. It is also submitted that, while considering the application for temporary injunction, the trial Court has clearly recorded a finding that whether schedule 'A' property forms part of the suit schedule property or not is required to be decided by appointing a Court Commissioner. Similarly, defendant No.1 in his cross-examination has admitted that he has no objection to appoint the Court Commissioner. Hence, the application was filed seeking appointment of a Court Commissioner, However, the trial Court erroneously dismissed the application by assigning incorrect reasons. It is contended that appointment of a Court Commissioner would resolve the dispute between the parties. Accordingly, he seeks to allow the petition. 3. Per contra, Sri.T.N.Vishwanatha, learned counsel appearing for respondent Nos.2 to 6 submits that the property claimed by the petitioner is a property owned - 6 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 and retained by defendant Nos.2 to 6 and does not form part of the suit schedule property. Hence, defendant Nos.2 to 6 have every right to develop the said property. It is submitted that the petitioner/plaintiff in first prayer has sought relief of mandatory injunction that the defendants shall construct a compound wall on the southern side of the suit schedule property, including the driveway i.e., schedule 'A' property, if it falls under the area of 1,04,068 square feet. The said aspect itself makes it clear that the plaintiff itself is uncertain as to whether Schedule 'A' property forms part of the suit schedule property or not. It is further submitted that prayer No.4 in the plaint seeks appointment of a surveyor to demarcate the property and these prayers sought in the plaint are required to be proved by the plaintiff by adducing oral and documentary evidence. The plaintiff cannot ask the trial Court to conduct an roving inquiry by collecting the evidence and seek for decree sought in the plaint. It is also submitted that since the burden lies upon the plaintiff to establish its - 7 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 case independently, the application has been rightly dismissed, and it cannot ask the trial Court to appoint a Court Commissioner to collect evidence to benefit the plaintiff. Accordingly, he seeks to dismiss the petition. 4. Ms.Oorvi U., learned counsel appearing for Sri.Siddharth Suman, learned counsel for respondent No.1 supports the case of the other respondents. 5. I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondents and meticulously perused the material available on record. 6. The petitioner filed OS.No.7299/2011 seeking relief of judgment and decree of mandatory injunction in favour of plaintiff directing the defendants to construct a compound wall on the southern side of the suit schedule property, including the driveway described as schedule 'A' property, if it falls under the area measuring 1,04,068 square feet conveyed under the joint development - 8 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 agreement dated 10.03.2003 along with other consequential reliefs. The plaintiff has shown the suit schedule property which is the schedule to the joint agreement dated 10.03.2003. The primary contention of the plaintiff is that Schedule 'A' property which is a driveway situated on the southern side of the suit schedule property measuring East to West about 272 feet and North to South 29.5 feet, in all measuring 8024 square feet with chakbandi, forms an integral part of the larger extent conveyed under the said joint development agreement. 7. The defendants filed detailed written statements denying the averments made in the plaint. Issues were framed; the parties led the evidence. Thereafter, the plaintiff filed an application under Order XXVI Rule 9 of the CPC seeking appointment of the Additional Director of Land Records, City Survey, Bengaluru as a Court Commissioner for conducting a survey. A perusal of the prayer made in the application indicates that the petitioner is seeking appointment of a - 9 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 Court Commissioner to conduct a local investigation as per the memo of instructions filed by the petitioner. The prayer appears to be not clear. 8. Be that as it may, a perusal of the affidavit filed in support of the application indicates that the petitioner’s case is that Schedule 'A' property forms part of the suit schedule property which is a driveway and it should be available for their use. It is further averred that the defendants during the interregnum, taking advantage of absence of a compound wall on the southern side, started putting up the construction over the said property. Be that as it may, the petitioner has therefore sought appointment of a Court Commissioner to inspect the suit schedule property as well as Schedule 'A' property to measure the same and to find out whether the Schedule 'A' property forms part of the suit schedule property or not. The said application was dismissed by the trial Court only by recording the reason that the chakbandi of the suit - 10 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 schedule property and Schedule 'A' property are different; hence, it cannot be ordered. 9. In my considered view, the said finding of the trial Court is perverse as the chakbandi and the schedule is bound to be different as the plaintiff is making assertion in the plaint that Schedule 'A' property forms the larger extent of property shown in the suit schedule property and they have a right by virtue of joint development agreement dated 10.03.2003 and the issue as to whether the Schedule ‘A’ property forms a larger extent of property measuring 1,04,068 square feet is required to be ascertained by the Court. In my considered view, any amount of oral and documentary evidence is not sufficient to come to conclusion as to whether the Schedule ‘A’ property forms the part of the suit schedule property or not unless it is actually measured in the presence of the parties to the suit. - 11 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 10. It is required to be noticed that by appointing a Court Commissioner, no prejudice or harm would be caused to the other side as the other side is specifically contending that schedule ‘A’ property is a remaining property retained by defendant Nos.2 to 6 and the said aspect also would be made clear if the Court Commissioner submits the report after measuring the same. 11. Insofar as the contention that the plaintiff is required to prove his case by producing independent evidence, this Court in the case of Sri.Shadaksharappa v. Kumari Vijayalaxmi and Others1 at paragraph Nos.20 and 21 held as under: “20. In the backdrop of the discussions made above, this Court cannot lose sight of the fact that in a large number of suits before the Trial Court, the applications are filed for the appointment of a Commissioner. In other words, this is one of the frequently invoked provisions of the Code. For this reason, this Court deems it desirable to summarise the broad guidelines that can be followed while 1 WP.No.201274/2022 disposed of on 24.01.2023 - 12 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 exercising the power under Order XXVI Rules 9 and 10 of the Code of Civil Procedure. a) The power of the court to appoint the Commissioner for local inspection or any other purpose provided in Order XXVI of the Code is discretionary. However, the said discretion is guided by not only Order XXVI Rules 9 and 10 of the Code but also the provisions of the Indian Evidence Act dealing with relevancy, expert opinion, and the burden of proof. b) The discretion to exercise the power under Order XXVI of the Code of Civil Procedure is not governed by the form of the suit. The Court can appoint the Commissioner in any kind of suit, provided a report of the Commissioner under Order XXVI of the Code is necessary for elucidating the matter in dispute. c) The issue framed in the suit, or where the issue is not yet framed, the pleadings which give rise to issue/s and the documents placed on record would be a guide to ascertain the ‘matter in dispute’ referred in Order XXVI Rule 9 of the Code d) The power to appoint the Commissioner for local inspection or scientific investigation/expert’s opinion 20 can be invoked even suo motu by the court, without there being an application by either of the parties, if the Court deems it appropriate to secure the report of the Commissioner. However, the appropriate reasons must precede the order appointing the Commissioner. And such orders are to be passed only after hearing the parties before it. - 13 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 e) The Commissioner can be appointed either before or after the commencement of the trial. However having due regard to the nature of the controversy, if the report is essential for elucidating the matter in dispute, it is desirable to have the local inspection before the commencement of trial as it is likely to reduce the volume of oral evidence in a given case. f) In addition to the report, having regard to Order XXVI Rule 10 of the Code, the evidence taken by Commissioner reduced in writing can also be taken on record and examined by the court while considering the report. g) The report of the Commissioner is not conclusive proof of what is stated therein. The report is only a piece of evidence, that the Court has to examine based on the other materials on record. h) Report of the Commissioner need not be formally marked for being considered as evidence. Once submitted to the court, the report is part of the court record and can be looked into by the court. i) The court may in its discretion examine the Commissioner on any matter concerning the report. There is no compulsion to examine the Commissioner. However, if the objection is filed to the report, and the party filing objection seeks to examine the Commissioner then the Commissioner should be examined. In either case, once the Commissioner is examined, the court having due regard to the evidence, may reject or accept the report in its entirety or in part, provided there are materials to - 14 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 justify such a finding on the report. In appropriate cases, the merit of the report can be considered at the final hearing. While considering the report at the final hearing, if the court finds that the report is erroneous and fresh commission is required, the court may pass appropriate order in this regard. j) If the court is dissatisfied with the ‘proceedings of the Commissioner’ as found in Order XXVI Rule 10 (3), it may direct further inquiry depending on the facts. As a matter of caution, it is clarified that examination and order under order XXVI 10 (3) are only to verify if the Commissioner has followed the proper procedure while carrying out his task. k) The person who has filed an objection to the report has the option of cross- examining the Commissioner to substantiate his objections or even without cross-examination, it is open to establish that the report is inadmissible in evidence. 21. Having examined the provisions referred to above and given the fact that Order XXVI of the Code of Civil Procedure is often invoked in the trial court, this court is of the view, broadly speaking in the following cases, the appointment of an appropriate Commissioner as provided under Order XXVI of the Code is desirable. (i) The dispute relating to the easement of air, light, pathway, road, watercourse, etc. (ii) The dispute relating to the boundary, encroachment; (iii) The dispute relating to forgery; - 15 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 (iv) The dispute relating to the existence or otherwise of a stream, pond, drainage, watercourse, road, pathway, pollution, or nuisance.” 12. This Court in the aforesaid decision is of the opinion that denying the appointment of Court Commissioner in a required case would amount to denying a party to adduce evidence. The Court further observed that the report of Court Commissioner itself being evidence and all the parties to the proceedings have right to oppose the said report by filing the objections to the Court Commissioner report and also cross-examine the Court Commissioner if need arises. Considering the enunciation of law laid down by this Court in the aforesaid decision, I am of the view that it is a fit case to appoint the Court Commissioner as the parties are at loggerheads regarding the issue as to whether Schedule ‘A’ property forms a part of the suit schedule property or not and the said issue can be resolved only by measuring the properties by the Court Commissioner, who can inspect - 16 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 the premises in the presence of the parties and submit the report. Hence, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The impugned order dated 01.02.2020 passed on I.A.No.14 in O.S.No.7299/2011 by the XII Additional City Civil and Sessions Judge (CCH.No.27), Bengaluru is hereby set aside. Consequently, IA.No.14 filed by the plaintiff under Order XXVI Rule 9 of the CPC is allowed. iii. The trial Court shall appoint the ADLR or any other competent surveyor as a Court Commissioner to measure the suit schedule property as well as the Schedule ‘A’ property and submit the report. - 17 - HC-KAR NC: 2026:KHC:35059 WP No. 5678 of 2020 iv. The parties are at liberty to file their memo of instructions to the Court Commissioner. v. The trial Court shall stipulate the timeline to submit the report. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE SHS,ABK List No.: 1 Sl No.: 22