- 1 - HC-KAR NC: 2026:KHC:3706 MSA No. 280 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE MISCELLANEOUS SECOND APPEAL NO.280 OF 2025 (RO) BETWEEN: 1. M.S YASHODA AGED 61 YEARS W/O BABU GOWDA,R/AT DOOR No.4/245B, SANTHRUPTHI HOUSE, PATTORI, BEHIND TELEPHONE EXCHANGE, KONAJE, MANGALORE TALUK-574 199 …APPELLANT (BY SRI. KETHAN KUMAR, ADVOCATE) AND: 1. K JAYANTHI W/o N. KORAGAPPA GOWDA, AGED ABOUT 56 YEARS,R/AT DOOR No.4/245C, SHREENIKETANA HOUSE, PATTORI, BEHIND TELEPHONE EXCHANGE, KONAJE, MANGALORE TALUK-574 199 …RESPONDENT THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 06.11.2025 PASSED IN RA No.158/2021 ON THE FILE OF PRESIDING OFFICER, LABOUR COURT, D.K., MANGALURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.09.2021 PASSED IN O.S.No.11/2019 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, MANGALURU, D.K., AND THE MATTER IS REMANDED BACK TO THE TRIAL COURT. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:3706 MSA No. 280 of 2025 CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This appeal is filed assailing the judgment and decree dated 06.11.2025 in R.A.No.158/2021, passed by the learned Presiding Officer, Labour Court, Dakshina Kannada, Mangaluru, wherein the regular appeal filed by the plaintiff/respondent was allowed. Consequently, the Judgment and decree passed by the Principal Civil Judge, Mangaluru in O.S.No.11/2019 dated 16.09.2021 was set aside and matter was remanded to the Trial Court with a direction to allow the application for appointment of a Court Commissioner for local inspection. 2. Suit is for mandatory injunction to remove the alleged encroachment on the suit road. 3. The defendant/appellant before this court has raised a contention that the road is not in existence and there is no encroachment. 4. Before the Trial Court, the plaintiff/respondent filed an application to appoint a Court Commissioner to make the local inspection. The said application was kept in abeyance - 3 - HC-KAR NC: 2026:KHC:3706 MSA No. 280 of 2025 holding that the application will be considered after the conclusion of the trial. 5. When the trial was concluded, the objection to the said application was not yet filed. However, the application was also not heard. The Trial Court dismissed the suit on the premise that the existence of alleged road and its encroachment is not established. 6. The plaintiff filed an appeal before the Appellate Court. The Appellate Court noticed that the application for appointment of Court Commissioner was not heard and the same was kept in abeyance and Appellate Court held that the appointment of the Court Commissioner is necessary to decide the controversy relating to the alleged encroachment. Accordingly, the appeal was allowed in part and the matter was remanded with a direction to allow the application for appointment of a Court Commissioner. 7. Learned counsel for the defendant/appellant would submit that the defendant/appellant has not yet filed objection to the said application for appointment of Court Commissioner and he may be permitted to file objection to the application for - 4 - HC-KAR NC: 2026:KHC:3706 MSA No. 280 of 2025 appointment of the Court Commissioner and thereafter the Court shall decide whether the appointment of a Court Commissioner is necessary or not. 8. The Court queried the learned counsel for the appellant/defendant to state his objections to the appointment of Court Commissioner and learned counsel for the appellant/defendant submits that the width of the alleged road is not mentioned. The plaintiff has sought measurement of the entire property of the appellant/defendant, which according to the defendant is not necessary. Under these circumstances, there is no need to appoint a Court Commissioner is the submission. 9. The following substantial question of law would arise for consideration: (i) Whether the First Appellate Court is justified in remanding the matter for fresh adjudication by appointing the Court Commissioner? 10. In the peculiar facts of this case, it is noticed that the application for appointment of Court Commissioner was filed before the commencement of trial and objection to the - 5 - HC-KAR NC: 2026:KHC:3706 MSA No. 280 of 2025 said application is not filed by the defendant even when the suit was decided on merits. Apart from that, assuming that the appellant would file objection to the said application for appointment of the Court Commissioner, it is required to be noticed that the dispute is relating to the width and alleged encroachment of the alleged road by the appellant/defendant. 11. It is to be noticed that the defendant has not disputed the existence of the road, but has only disputed the alleged encroachment. At the same time, it is relevant to note that the width of the road is not mentioned by either the plaintiff or the defendant. 12. In the case of this nature, the report of the Court Commissioner, if proved to be correct, would be a handy tool for the Court to adjudicate the controversy on merits. 13. Under the circumstances, this Court does not find any reason to interfere with the impugned decree passed by the First Appellate Court remanding the matter to the Trial Court with a direction to appoint a Court Commissioner. Hence no case is made out to interfere with the said judgment and decree. - 6 - HC-KAR NC: 2026:KHC:3706 MSA No. 280 of 2025 14. However, it is to be noticed that the appellant/defendant should be permitted to put the queries to the Court Commissioner and appellant/defendant shall furnish the queries in writing before the Trial Court. If need be, the Trial Court may also put the queries to the Court Commissioner. 15. To the extent possible, the guidelines laid down in Shadaksharappa vs. Kumari Vijayalaxmi1, be followed by the Trial Court. 16. Hence, the appeal is dismissed. 17. It is made clear that this Court has not expressed anything on the merits of the matter. 18. All contentions relating to the alleged encroachment are kept open. Sd/- (ANANT RAMANATH HEGDE) JUDGE MR 1 ILR 2023 KAR 3983