- 1 - HC-KAR NC: 2026:KHC:3695 W.P. No.28387/2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.28387/2023 (GM-CPC) BETWEEN: SRI. SRIDHAR ALIAS S. SRIDHAR ALIAS S. SRIDHAR BHARGAV S/O LATE S.K. SHANKAR NARAYANA AGED ABOUT 59 YEARS R/O. THEGUR VILLAGE CHIKKAMAGALUR TALUK CHIKKAMAGALURU DISTRICT-577101. …PETITIONER (BY SRI. SUBRAHMANYA KAUSHIK R.S. ADV.,) AND: 1. SMT. KUMUDHA W/O LATE K.P. MOHANA AGED ABOUT 52 YEARS. 2. KUM K.M. SINCHANA D/O LATE K.P. MOHANA AGED ABOUT 30 YEARS. 3. KUM K.M. SPANDANA D/O LATE K.P. MOHANA AGED ABOUT 25 YEARS. RESPONDENT NOS.1 TO 3 ARE R/O THEGUR VILLAGE AND POST CHIKKAMAGALUR TALUK CHIKKAMAGALUR DISTRICT-577101. …RESPONDENTS (BY SRI. A. MADHUSUDHANA RAO, ADV., FOR R1 TO R3) Digitally signed by ARSHIFA BAHAR KHANAM HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:3695 W.P. No.28387/2023 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPRORIATE WRIT OR DIRECTION SETTING ASIDE THE ORDER DATED 31/10/2023 IN O.S. NO.157/2018 PASSED BY THE III ADDL. CIVIL JUDGE AND JMFC, CHIKKAMAGALURU DISMISSING I.A. NO.6 UNDER ORDER XXVI RULE 9 R/W S. 151, CPC, PRODUCED AS ANNEXURE-H, AND CONSEQUENTLY, ALLOW I.A. NO.6 FILED BY THE PETITIONER & 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 seeking the following reliefs: "(i) Issue a writ in the nature of certiorari or any other appropriate writ or direction setting aside the order dated 31/10/2023 in O.S.No.157/2018 passed by the III Addl. Civil Judge and JMFC, Chikkamagaluru, dismissing i.a. No.6 under Order XXVI Rule 9 r/w S.151, CPC, produced as Annexure- H, and consequently, allow I.A. No.6 filed by the petitioner." 2. Sri.Subrahmanya Kaushik R.S., learned counsel for the petitioner submits that the petitioner has filed a suit in O.S.No.157/2018 for the declaration that the petitioner-plaintiff is the absolute owner of schedule 'A' and 'B' properties and - 3 - HC-KAR NC: 2026:KHC:3695 W.P. No.28387/2023 further declare that schedule 'B' property is the part and parcel of schedule 'A' property and direct the respondent-defendants to hand over possession of 'B' schedule property. It is submitted that the petitioner has specifically asserted in the plaint that 2 guntas of land referred in schedule 'B' property has been encroached by the respondents-defendants and the said suit was filed based on the sketch (Haddu Bastu), which is marked as Ex.P2 in the evidence. It is further submitted that the petitioner has filed an application for appointment of ADLR, Chikamagalur as Court Commissioner to measure the suit schedule properties and more particularly the encroached portion therein, which would assist the trial Court in deciding the lis between the parties. It is submitted that the respondents-defendants objected to the said application only on two counts viz., the said application is filed prematurely i.e. before the conclusion of trial and the application is filed to collect the evidence. Both issues are answered against the petitioner in the case of Sri Shadaksharappa vs. Kumari Vijayalaxmi and others1. It is further submitted that the trial Court without appreciating these aspects under the impugned 1 ILR 2023 KAR 3983 - 4 - HC-KAR NC: 2026:KHC:3695 W.P. No.28387/2023 order rejected the application. It is also submitted that the report of the Court Commissioner would reduce the burden of the trial Court in recording the evidence as the Court Commissioner would give correct picture on physical verification with regard to the encroachment as alleged in the plaint. Hence, he seeks to allow the petition. 3. Per contra, Sri.A.Madhusudhana Rao, learned counsel appearing for the respondents-defendants supports the order of the trial Court and submits that the law is trite with regard to the appointment of Court Commissioner, it can be allowed only if need arises, that too, after conclusion of the trial. It is submitted that the alleged encroachment in the plaint has been specifically denied in the written statement by specifically contending that the property of the respondents- defendants is fenced by steel fence and the question of encroachment would not arise. It is submitted that the respondents-defendants are yet to adduce evidence, once the evidence is adduced and if the trial Court is satisfied with the evidence on the record, the need of Court Commissioner would not arise and taking note of the same, the trial Court has - 5 - HC-KAR NC: 2026:KHC:3695 W.P. No.28387/2023 rightly rejected the application that it is a premature one, therefore, the same does not call for any interference. 4. I have heard arguments of learned counsel for the petitioner, learned counsel for the respondents and meticulously perused the material available on record. 5. The petitioner has filed a suit in O.S.No.157/2018 for the relief of declaration that the petitioner-plaintiff is the absolute owner of schedule 'A' and 'B' properties and further relief of handing over the possession of schedule 'B' property from the respondents-defendants. Para 2 of the plaint averments indicate that the petitioner has purchased 1 acre 15 guntas of land in Survey No.161/2A1 of Tegoor Village, Kasaba Hobli, Chikmagalur Taluk, and later he has gifted some portion of the property and sold some portion of the property and he retains 35 guntas of the land. It is specifically asserted that in the remaining 35 guntas of land, 2 guntas of land has been encroached by the respondents-defendants and the petitioner could not get the survey conducted prior to the purchase of the property from his vendor. In support of his contention, he placed reliance on the Haddu Bastu sketch. The records indicate - 6 - HC-KAR NC: 2026:KHC:3695 W.P. No.28387/2023 that the petitioner has adduced the evidence to prove his assertion in the plaint and also got marked on Ex.P2, the Haddu Bastu. During the trial stage, petitioner has filed an application under Order XXVI Rule 9 read with Section 151 of CPC seeking for appointment of ADLR, Chikmagalur, as a Court Commissioner to measure the suit schedule properties so that the Court Commissioner would give a clear picture with regard to encroachment. The said application was opposed and the trial Court, considering the same, rejected the said application under the impugned order. The trial Court mainly recorded the reason that the application is filed prematurely by referring to the decision of this Court in the case of Renuka vs. Thammanna2. It is to be noticed that the appointment of Court Commissioner can be entertained generally only after the conclusion of the trial. The co-ordinate bench of this Court in the case of Sri Shadaksharappa referred supra, at para 20 has 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 2 ILR 2007 KAR 3029 - 7 - HC-KAR NC: 2026:KHC:3695 W.P. No.28387/2023 the Code. For this reason, this Court deems it desirable to summarise the broad guidelines that can be followed while 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 Civil Procedure Code 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 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. 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. - 8 - HC-KAR NC: 2026:KHC:3695 W.P. No.28387/2023 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 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- - 9 - HC-KAR NC: 2026:KHC:3695 W.P. No.28387/2023 examination, it is open to establish that the report is inadmissible in evidence." 6. Taking note of the enunciation of law declared by this Court in the aforesaid decision, I am of the considered view that if the petitioner makes specific assertion with regard to the encroachment and the defendants denies the same and the evidence to that aspect is not clear, it is open for the trial Court to appoint a Court Commissioner to ascertain the factual aspect. However in the case on hand, the evidence of the respondents-defendants is not even commenced. When things stood thus, I am of the considered view that interest of justice would be met if the trial Court is directed to consider the petitioner's application for appointment of Court Commissioner after the conclusion of trial taking note of the evidence on record. 7. For the aforementioned reasons, I proceed to pass the following : ORDER i. Writ petition is allowed. - 10 - HC-KAR NC: 2026:KHC:3695 W.P. No.28387/2023 ii. The order dated 31.10.2023 passed by the III Additional Civil Judge and JMFC., Chikkamagaluru, on I.A.No.6 in O.S.No.157/2018 is hereby set aside. iii. The trial Court is directed to consider I.A.No.6 filed by the petitioner under Order XXVI Rule 9 of CPC after conclusion of the trial. It is made clear that this Court has not expressed any opinion on the merits of the case. No orders to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 43