- 1 - HC-KAR NC: 2026:KHC:20294 WP No. 13443 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 13443 OF 2022 (GM-CPC) BETWEEN: 1. RAJESHWARI G SHENDGE W/O GANAPATHY RAO SHENDGE AGED ABOUT 74 YEARS R/AT NO. D.NO. 3428/11, CHIGATERI LAYOUT, NEAR SAPTAGIRI SCHOOL, KUNDWADA ROAD, DAVANAGERE TALUK AND DISTRICT (SENIOR CITIZEN BENEFIT NOT CLAIMED) …PETITIONER (BY SRI. S.V. PRAKASH, ADVOCATE) AND: 1. VANAMALA D RAIKAR W/O DATTARAM R RAIKAR AGED ABOUT 62 YEARS OCCUPATION HOMEMAKER R/AT D.NO.165, NEAR OLD RTO OFFICE, A BLOCK, DEVARAJ URS LAYOUT DAVANAGERE. 2. DATTARAM RAIKAR S/O RAMACHANDRA RAIKAR AGED ABOUT 68 YEARS, D.NO. 165, NEAR OLD RTO OFFICE, A BLOCK, DEVRAJ URS LAYOUT, DAVANAGERE. ….RESPONDENTS (BY SRI. CHINMAY KULKARNI FOR SRI. R GOPAL, ADVOCATE FOR R1 & 2) Digitally signed by AASEEFA PARVEEN Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:20294 WP No. 13443 of 2022 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 17.06.2022 PASSED BY THE COURT OF LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE ON I.A.NO.10 IN R.A.NO.92/2012 PRODUCED AS PER ANNEXURE-F TO THE WRIT PETITION AND ETC., THIS WRIT PETITION, COMING ON FOR HEARING - INTERLOCUTORY APPLICATION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated 17.06.2022 passed by the Principal District and Sessions Judge, Davanagere, (for short 'the Trial Court') on I.A.No.10 in R.A.No.92/2012. 2. Heard Sri.S.V.Prakash, learned counsel for the petitioner and Sri.Chinmay Kulkarni for Sri.R.Gopal, learned counsel for respondents No.1 and 2. 3. The respondents herein filed a suit in O.S.No.78/2007 for the relief of declaration and mandatory injunction. The said suit came to be dismissed. Being aggrieved, the respondents filed Regular First Appeal in - 3 - HC-KAR NC: 2026:KHC:20294 WP No. 13443 of 2022 R.A.No.92/2012. In the said appeal, they have filed two applications i.e. IA No.1 and No.4 seeking for production of additional evidence as well as appointment of Court Commissioner. Both applications came to be rejected by the appellate Court, which was challenged by the respondents in Writ Petition No.37092/2014 and Writ Petition No.37093/2014. This Court allowed both the writ petitions by directing the appellate Court to reconsider the application for production of documents afresh and allowed the application for appointment of Court Commissioner which was challenged by the petitioner herein before the Hon'ble Supreme Court. The Hon'ble Supreme Court vide order dated 09.01.2020, disposed of the Special Leave to Appeal Nos.30602-30603/2019 by observing that the Court Commissioner has to measure all sites atleast from the three fixed points to ascertain the situation and proceeded to dismiss the Special Leave Petition. The order of this Court appointing a Court Commissioner has attained finality with the aforesaid observation. 4. Records indicate that the Court Commissioner conducted spot inspection and submitted the report before the Court. Thereafter, the appellant filed an application to summon - 4 - HC-KAR NC: 2026:KHC:20294 WP No. 13443 of 2022 the Court Commissioner and cross examine the said witness i.e. Court Commissioner. At that stage, the petitioner herein who was the respondent in the appeal also sought permission to cross examine CW1-Court Commissioner. The Trial Court under the impugned order rejected IA No.10 filed by the petitioner on the ground that the petitioner has not filed objections to the Court Commissioner Report and allowing cross examination would cause prejudice to the other side. It is to be noticed that the Hon'ble Supreme Court while upholding the order of this Court of appointment of Court Commissioner has observed that the Court Commissioner shall do measurement of all the sites atleast from three fixed points to ascertain the situation and submit the report. As per the orders referred supra, the Court Commissioner submitted the report before the appellate Court. 5. It is not in dispute that the petitioner herein has not filed objections to the said report, that does not mean that the observations made by the Court Commissioner cannot be objected by him in the absence of filing written objections to the said Court Commissioner's report. It is also to be noticed that the appellant has already cross examined CW1 and during - 5 - HC-KAR NC: 2026:KHC:20294 WP No. 13443 of 2022 the cross examination, the Court Commissioner would have spoken contrary to the interest of the petitioner, which is required to be clarified by the petitioner by putting questions to the Court Commissioner in the form of cross examination. Such a right cannot be denied to the petitioner. Right to cross examination is a substantive right available to the party in the proceedings and the said exercise is carried out to illicit the truth from the mouth of the witness. 6. Admittedly, the witness in question is a Court Commissioner i.e. CW1 who has spoken before the Court with regard to certain facts and if said facts goes contrary to the interest of the petitioner, then he would have every right to cross examine the said witness. Denying such opportunity to the petitioner would cause great prejudice to the petitioner and such a substantive right cannot be taken away by the Court on the ground that he has not filed objections to the Commissioner's report. 7. For the aforementioned reasons, the impugned order dated 17.06.2022 passed by the Principal District and Sessions Judge, Davanagere, is set aside. - 6 - HC-KAR NC: 2026:KHC:20294 WP No. 13443 of 2022 8. I.A.No.10 is allowed. The petitioner is permitted to cross examine CW1-Court Commissioner on the next date of hearing. Sd/- (VIJAYKUMAR A. PATIL) JUDGE AP CT:VS List No.: 1 Sl No.: 8