Karnataka High Court
Sri. O.B. Lakshminarayana vs Sri.Munegowda on 19 June, 2025
-1-
NC: 2025:KHC:21213
W.P. No.13372/2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.13372/2020 (GM-CPC)
BETWEEN:
SRI. O.B. LAKSHMINARAYANA
AGED ABOUT 55 YEARS
S/O LATE AVALAPPA
R/AT ABLOODU VILLAGE
KASABA HOBLI, SIDLAGHATTA TALUK
CHIKKABALLAPUR DISTRICT 562105.
...PETITIONER
(BY SRI. CHANDRASHEKARA REDDY R.A. ADV.,)
Digitally signed AND:
by RUPA V
Location: High SRI. MUNEGOWDA
Court of AGED ABOUT 50 YEARS
karnataka S/O LATE LAKSHMAIAH
R/AT ABLOODU VILALGE
KASABA HOBI, SIDLAGHATTA TALUK
CHIKKABALLAPUR DISTRICT 562105.
...RESPONDENT
(BY SRI. G.A. VISWANATHA REDDY, ADV.,)
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE ORDER DATED 30.09.2020 ON
I.A.NO.12 FILED UNDER ORDER XXVI RULE 9 R/W SECTION 151 OF
THE CODE OF CIVIL PROCEDURE IN O.S.NO.188/2010 PASSED BY
CIVIL JUDGE (JR.DN) AND JMFC SIDLAGATTA VIDE ANNEXURE-A
AND FOR SUCH OTHER ORDER, DIRECTION AND DECLARATION &
ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
-2-
NC: 2025:KHC:21213
W.P. No.13372/2020
HC-KAR
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This petition is filed seeking following reliefs:
"Issue a writ of certiorari quashing the Order
dated 30/09/2020 on I.A.No.12 filed under
Order XXVI Rule 9 R/W Section 151 of the Code
of Civil Procedure in O.S.No.188/2010 passed
by Civil Judge (Jr.Dn.) and JMFC Sidlagatta vide
Annexure-A and for such other order, direction
and declaration as this Hon'ble Court may deem
fit in the facts and circumstances of the case, in
the interest of justice and equity."
2. Sri.Chandrashekara Reddy R.A., learned
counsel appearing for the petitioner submits that the
respondent filed a suit for declaration and permanent
injunction against the petitioner. It is submitted that in
written statement filed by the petitioner, petitioner has
taken categorical stand that he is the absolute rightful
owner in possession of the property in Sy.No.306/1,
measuring an extent of 3 acres 04 guntas with the
boundaries mentioned in the same and the said property
was acquired in the partition deed dated 14.02.1994
effected between the petitioner and his brother
Sri.O.B.Krishnappa. It is further submitted that the
NC: 2025:KHC:21213
HC-KAR
respondent, who is the plaintiff claims that he is in
possession of the land measuring 0.01¼ guntas out of
0.04 guntas in Sy.No.306/1 of Abloodu Village, Kasaba
hobli, Sidlaghatta taluk. There is a serious dispute with
regard to the ownership and possession of the properties
claimed by the petitioner and the respondent. Hence, an
application came to be filed under Order 26 Rule 9 r/w
Section 151 of CPC seeking for an appointment of a Court
Commissioner which came to be rejected without
assigning any reason. It is also submitted that the said
application was filed to ascertain the properties claimed by
each of the parties and their respective possession and
without considering the said aspect, the trial Court has
rejected the application without assigning any reason only
on the ground that the matter is of the year 2010. In
support of his contention, he places his reliance on the
decision of this Court in the case of Krishnamurthy M.
NC: 2025:KHC:21213
HC-KAR
vs. K.Narayanaswamy and Others1. Hence, he seeks to
allow the petition by appointing the Court Commissioner.
3. Sri.G.A.Viswanatha Reddy, learned counsel
appearing for the respondent supports the impugned order
of the trial Court and submits that filing of the application
by the petitioner is an abuse of the process of law and
with an intention to drag on the proceedings. Hence, he
seeks to dismiss the petition.
4. I have heard the arguments of the learned
counsel for the petitioner, the learned counsel for the
respondent and meticulously perused the material
available on record. I have given my anxious consideration
to the submissions advanced.
5. The respondent has filed a suit in
O.S.No.188/2010 pending on the file of the Civil Judge
(Jr.Dn) & JMFC, Sidlaghatta. The said suit is for declaration
of ownership and injunction to the suit schedule property.
2010 SCC OnLine Kar 2454
NC: 2025:KHC:21213
HC-KAR
The respondent/plaintiff is claiming the ownership of
0.01¼ guntas out of 0.04 guntas of land in Sy.No.306/1
situated at Abloodu Village, Kasaba hobli, Sidlaghatta
Taluk. The petitioner in the written statement at
paragraph No.4 has categorically made assertion that he is
the absolute owner of land measuring to an extent of 3
acres 04 guntas in Sy.No.306/1 of Abloodu Village, Kasaba
hobli, Sidlaghatta Taluk. It is not in dispute that the
parties to the proceedings have adduced the evidence and
thereafter, the application under Order 26 Rule 9 r/w
Section 151 of CPC came to be filed by the petitioner. The
trial Court rejected the application solely on the ground
that the suit is of the year 2010. It has not assigned any
reason for rejection of such application. It would be useful
to extract paragraph No.6 of the judgment of this Court in
the case of Krishnamurthy M. referred supra.
"6. An order to issue a commission to any person
under Order 26 Rule 9 CPC is discretionary. A report
of the commissioner under Order 26 Rule 10 CPC is a
piece of evidence which can be rebutted by other
evidence. The appointment of a commissioner would
depend upon the nature of the dispute and the facts
and circumstances of each case. The power to appoint
NC: 2025:KHC:21213
HC-KAR
a commissioner under Order 26 Rule 9 CPC being wide
and discretionary is required to be considered keeping
in view the nature of dispute and the facts and
circumstances of the case. The application filed, upon
consideration, should be disposed off by reasoned
order. The stage at which the commissioner should be
appointed, there can be no hard and fast rule. The
pre-requisite for issue of a commission is for
satisfaction of the court that the local investigation is
requisite and proper and such satisfaction is to be
judicial satisfaction based on reason."
6. A Co-ordinate Bench of this Court in the case of
Sri.Shadaksharappa vs. Kumari Vijayalaxmi and
Others2 has considered the various aspects and laid down
the guidelines for consideration of application for
appointment of Court Commissioner by the trial Court.
Keeping in mind the aforesaid enunciation of law laid down
by this Court, I am of the considered view that the trial
Court has committed grave error in rejecting the
application without any reason. The appointment of a
Court Commissioner for the purpose of ascertaining the
claim of both parties and their respective possession would
aid the trial Court in deciding the relief sought in the
plaint. It cannot be lost sight of the fact that the petitioner
2023 SCC OnLine Kar 53
NC: 2025:KHC:21213
HC-KAR
in his cross-examination has admitted that he is agreeable
for appointment of Court Commissioner. Considering the
said aspect, evidence on record and considering the nature
of dispute involved between the parties, I am of the
considered view that it is a fit case to appoint the Court
Commissioner to ascertain the factual matters. For the
aforementioned reasons, I proceed to pass the following:
ORDER
i) Writ petition is allowed.
ii) The impugned order dated
30.09.2020 on IA.No.12 in O.S.No.188/2010
by the Civil Judge (Jr.Dn) & JMFC, Sidlaghatta
is hereby set aside. Consequently, IA.No.12
filed under Order 26 Rule 9 r/w Section 151 of
CPC is allowed.
iii) The trial Court is directed to appoint
the official surveyor as a Court Commissioner.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
ABK
