Karnataka High Court

Sri Sandeep Gangadhar vs Sri V Jayarama Reddy on 11 June, 2025

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                             NC: 2025:KHC:19914
                                                           WP No. 16094 of 2025


                   HC-KAR



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 11TH DAY OF JUNE, 2025

                                             BEFORE
                          THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                          WRIT PETITION NO. 16094 OF 2025 (GM-CPC)
                   BETWEEN:

                         SRI. SANDEEP GANGADHAR
                         AGED ABOUT 61 YEARS,
                         S/O. D.N. GANGADHAR,
                         R/AT NO.920, 1ST 'F' MAIN ROAD,
                         II PHASE, GIRINAGAR,
                         BANGALORE - 560 085.
                                                                   ...PETITIONER
                   (BY SRI. SIDDHARTH SUMAN, ADVOCATE)

                   AND:

                   1.    SRI. V. JAYARAMA REDDY,
                         AGED ABOUT 66 YEARS,
                         S/O VEMAREDDY,
Digitally signed         R/AT DODDABANASWADI VILLAGE,
by NAGAVENI
                         BANASWADI POST ,
Location: High
Court of                 BANGALORE - 560 043.
Karnataka

                   2.    SRI. MANJUNATHA K.
                         AGED ABOUT 56 YEARS
                         S/O S.M. KRISHNAREDY,
                         R/AT SARAKKI VILLAGE, UTTARAHALLI HOBLI,
                         BANGALORE SOUTH TALUK - 560 078.

                   3.    SRI. S.M. KRISHNAREDDY,
                         MAJOR IN AGE,
                         S/O LATE DODDAMUNISWAMY REDDY,
                                 -2-
                                             NC: 2025:KHC:19914
                                           WP No. 16094 of 2025


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    R/AT SARAKKI VILLAGE,
    UTTARAHALLI HOBLI,
    BANGALORE SOUTH TALUK - 560 078.
                                                ...RESPONDENTS
(BY SRI. RAJESH MAHALE, SENIOR COUNSEL FOR
    SRI. N. GURUVA REDDY, ADVOCATE FOR R1)

      THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED
14.03.2025 PASSED BY THE HONBLE 75TH CITY CIVIL COURT AND
SESSIONS JUDGE, BENGALURU (CCH-76) IN O.S.NO. 5689/2015
ON I.A. NO.9 FILED BY THE PETITIONER UNDER ORDER XXVI
RULE 9, 10 AND 10(A) R/W SECTION 151 OF THE CODE OF CIVIL
PROCEDURE AND I.E ANNEXURE - 'A' TO CONSEQUENTLY ALLOW
THE I.A.NO.9 FILED BY THE PETITIONER IN THE HONBLE TRIAL
COURT IN O.S.NO. 5689/2015 I.E., ANNEXURE-'A1' AND ETC.

      THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:     HON'BLE MR JUSTICE M.NAGAPRASANNA

                          ORAL ORDER

The petitioner - plaintiff in O.S. No.5689/2015 is at the

doors of this Court calling in question an order passed by the

concerned Court rejecting an application filed by the petitioner

under Order XXVI Rules 9, 10 and 10(A) read with Section 15

of the C.P.C., seeking appointment of a Court Commissioner to

identify the property of the petitioner.

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2. Heard Sri. Siddharth Suman, learned counsel

appearing for the petitioner, Sri. Rajesh Mahale, learned

counsel appearing for respondent No.1 and have perused the

material on record.

3. The present suit is the second-in-line.

The petitioner - plaintiff had instituted a suit in

O.S.No.6592/2004 for injunction against the same respondents

- defendant Nos.1, 2 and 3. The said suit comes to be

dismissed. The dismissal of the suit leads the petitioner -

plaintiff before this Court in R.F.A.No.428/2009. The said

appeal comes to be dismissed by the Co-ordinate Bench, in

terms of its order dated 05.01.2025, affirming the findings of

the concerned Court in O.S. No.6592/2004. The reasons

rendered by the Co-ordinate Bench in R.F.A.No.428/2009, read

as follows:

"5. Given the above circumstances, while the learned counsel for the appellant is right in his contention that the suit could not have been dismissed even in respect of the site formed over land in Survey No.10/1A2. The finding that the plaintiff had not established his possession over the entire extent of the land described in the suit schedule cannot be faulted. Therefore, the plaintiff would do well to file a comprehensive suit to seek possession over the entire extent described in the sale deed, subject to the defences that may be available to the respondent herein. The suit being one for bare injunction

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and the court not having entered upon any other issue as regards title, it would not be possible for this court to reverse the judgment on the contention that the plaintiff would have succeeded atleast in respect of that portion of land, which was undisputedly in his possession. Leaving open any such remedy that the plaintiff may be entitled to, the appeal is dismissed."

While rejecting the aforesaid appeal, the Co-ordinate

Bench has observed that the plaintiff would do well by filing a

comprehensive suit to seek possession over the entire extent

as mentioned in the Sale Deed. The suit being one of bare

injunction, the Court cannot enter upon the issues with regard

to title.

4. Taking queue from the observation made by the

Co-ordinate Bench as quoted supra, the petitioner - plaintiff has

presented the subsequent suit in O.S.No.5689/2015.

The issue is not with regard to new suits, but the petitioner

filing an application under Order XXVI Rule 9 of the C.P.C., at

the stage of arguments of the case to get a Court

Commissioner appointed to identify the property of the plaintiff.

5. As a matter of fact, the plaintiff in the earlier suit

itself, had filed an application under Order XXVI Rule 9 of the

C.P.C., and a Court Commissioner had been appointed.

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The Court Commissioner had submitted his report drawing up a

sketch with regard to the properties of the plaintiff and

defendants. The Court now considers the same and rejects the

application filed by the plaintiff under Order XXVI Rule 9 of the

C.P.C., observing that the Court had already appointed

Commissioner and the report of the Commissioner is already in

place. The observation of the concerned Court is as follows:

"10. The plaintiff has filed this suit against defendants seeking reliefs of declaration, mandatory injunction and vacant possession of on Eastern side. On perusal of Ex.P.19 which shows that suit in O.S.No.6592/2004 is filed before XXXVIII Addl. City Civil Judge, Bengaluru, by present plaintiff against defendant No.1 and 2, which is dismissed with costs. The appeal in RFA.No.428/2009 filed by the plaintiff against defendant No.1 and 2 before the Hon'ble High Court of Karnataka, Bengaluru, challenging the Judgment and Decree in O.S.No.6592/2004 dated: 13.04.2009, which is dismissed. The learned Counsel for defendant No.1 has produced the certified copy of I.A.No.2 filed by the present plaintiff under Order 26 Rule 9 R/w/Sec.75. R/w/Sec.151 of CPC seeking to appoint of Court Commissioner i.e. Assistant Director of Land Records, Bengaluru in O.S.No.6592/2004 and produced the certified copies of memo of instructions, and survey sketch."

Except the aforesaid paragraph, there is no reason worth

the name as to why the application of the petitioner would not

merit consideration.

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6. Learned counsel appearing for the petitioner -

plaintiff and respondents - defendants both would contend that

they had relied upon certain judgments including the judgment

of the Co-ordinate Bench of this Court, which extensively

considers the purport of Order XXVI Rule 9 of the C.P.C., as to

when it should be permitted and when should not. That also

does not bare consideration, while rejecting the application of

the petitioner.

7. In that light, the concerned Court shall now

reconsider the application filed by the petitioner by passing

necessary orders, within two weeks from the date of receipt of

a copy of the order, bearing in mind the observations made by

the Co-ordinate Bench in W.P.No.201274/2022 dated

24.01.2023.

8. The observations made in the course of the order is

only for the purpose of consideration of the case of the

petitioner and submissions so made with regard to the order

suffering from non-application of mind.

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9. None of the observations would become binding

upon the concerned Court to now pass an order in a particular

manner in terms of what is afore-directed.

10. For the aforesaid reasons, the following:

ORDER

(i) Writ petition is allowed in part;

(ii) Proceedings in O.S.No.5689/2015 passed by the Principal City Civil and Sessions Judge, Bengaluru (CCH-76), is hereby quashed.

(iii) The matter is remitted back to the hands of the concerned Court to pass appropriate orders on the application under Order XXVI Rule 9 of the C.P.C., bearing in mind the observations made in the course of the order.