Karnataka High Court
P. V Joseph Since Deceased By His Lrs Mr P J ... vs Mr. Doddanaiah on 20 November, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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WP No. 10075 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 10075 OF 2024 (GM-CPC)
BETWEEN:
P.V. JOSEPH
SINCE DECEASED BY HIS LRS
1. MR. P.J. FRANCIS
S/O LATE P.V. JOSEPH
AGED ABOUT 51 YEARS.
2. MRS. P.J. PHILOMINA
W/O LATE P.V. JOSEPH
AGED ABOUT YEARS.
3. MR. P.J. ROCKEY
S/O LATE P.V. JOSEPH
AGED ABOUT 63 YEARS.
ALL ARE RESIDING AT NO.32,
MICHAELPALYAM, 80 FEET ROAD
INDIRANAGAR, BENGALURU - 560 075.
Digitally ...PETITIONERS
signed by
NANDINI M S (BY SRI V.B. SHIVAKUMAR, ADV.)
Location:
HIGH COURT AND:
OF
KARNATAKA
1. MR. DODDANAIAH
S/O LATE RAMEGOWDA
AGED ABOUT 81 YEARS
R/O NO.1016D, 17 E CROSS
INDIRANAGAR II STAGE
BANGALORE - 560 038.
2. MR. P.J. PAUL
S/O LATE P.C. JOSEPH
AGED ABOUT 71 YEARS
R/A NO.42, PANDARI HOUSE
MICHEALPAYA 4TH CROSS
-2-
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WP No. 10075 of 2024
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INDIRANAGAR
BENGALURU - 560 038.
3. MR. D. MARI GOWDA
S/O LATE DASEGOWDA
AGED ABOUT 76 YEARS
R/A NO.171, SRINIVASA NILAYA
MICHEALPAYA, 4TH CROSS
INDIRANAGAR
BENGALURU - 560 038.
4. MRS. N. SHEELA
W/O G. HULIAPPA
AGED ABOUT 55 YEARS
R/A NO 55/1 (NEW NO.3)
MICHEALPAYA, 4TH CROSS
INDIRANAGAR, BENGALURU - 560 038.
REP BY HER HUSBAND AND GPA HOLDER
SHRI G HULIAPPA
S/O LATE GANGANNA
AGED ABOUT 62 YEARS.
...RESPONDENTS
(BY SRI H.R. ANANTHA KRISHNA MURTHY, ADV.)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
27/02/2024 ON INTERLOCUTORY APPLICATION IA NO. 2/2023 FILED
BY THE RESPONDENTS UNDER ORDER XXVI RULE 9 R/W SECTION
151 CPC IN OS NO. 26259/2014 PASSED BY THE XXVIII ADDL. CITY
CIVIL JUDGE, MAYOHALL UNIT, BENGALURU (CCH-29), WHICH IS
PRODUCED AS ANNEXURE-A.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. The Petitioners are before this Court under Article
227 of the Constitution of India with a prayer to set aside the
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order dated 27.02.2024 passed on I.A.No.2 of 2023 in
O.S.No.26259 of 2014 by the Court of XXVIII Addl. City Civil
Judge, Mayohall Unit, Bengaluru.
2. Heard the learned counsel appearing for the parties.
3. The respondents herein had filed O.S.No.26259 of
2014 under Order I Rule 8 R/w Order VII Rule 1 of CPC with a
prayer to declare that road marked in red colour and denoted
by letters 'ABCD' is a road dedicated to the users of public and
that the same is an easement of necessity and a consequential
relief of permanent injunction is also sought against the
defendant in the said suit. The defendant has filed written
statement and had opposed the suit claim. When the suit was
at the stage of addressing arguments, I.A.No.2 of 2023 was
filed on behalf of the plaintiffs under Order XXVI Rule 9 R/w
Section 151 pf CPC with a prayer to appoint a Court
Commissioner for local inspection. The said application was
opposed by the defendant by filing objection and the trial Court
vide the order impugned has allowed the said application and
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being aggrieved by the same, the defendant is before this
Court.
4. Learned counsel for the petitioner having
reiterated the grounds urged in the petition submits that the
plaintiffs in O.S.No.25259 of 2014 had earlier filed O.S.No.3985
of 1993 against the defendant in respect of the very same
property and the said suit was dismissed and the judgment and
decree passed in O.S.No.3985 of 1993 has been confirmed by
this Court in RFA No.233 of 2003. He submits that the plaintiffs
had failed to prove in the earlier suit about existence of any
road. Even in the present suit, the plaintiffs have not produced
any material before the Court to show that there exists a road
in the suit schedule 'E' property. He submits that with an
intention to collect evidence, the present application is filed on
behalf of the plaintiffs with a prayer to appoint court
Commissioner for local inspection. The same is not permissible.
The trial Court has erred in allowing the application.
5. Per contra, learned counsel appearing for the
respondents submits that the present suit is filed invoking order
I Rule 8 of CPC. This Court while dismissing RFA No.233 of
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2003 has granted liberty to the plaintiffs in O.S.No.3985 of
1993 to file a suit in representative capacity. He submits that,
the present suit is filed with a prayer to declare that road
existing in schedule 'E' property is a public road and the same
is an easement of necessity. He has placed reliance on the
judgment of Co-ordinate Bench of this Court in the case of SRI
SHADAKSHARAPPA V. KUMARI VIJAYALAXMI - KCCR-
2023-1-637 and submits that in normal circumstances in a
case where easmentary rights is claimed, the Courts should
appoint a court commissioner for the purpose of effective
adjudication of the dispute involved in the suit.
6. Perusal of the material on record would go to show
that, O.S.No.3985 of 1993 was filed by some of the plaintiffs in
the present suit against the defendant seeking similar relief and
the said suit was dismissed. As against the judgment and
decree passed in O.S.No.3985 of 1993, the plaintiffs had
approached this Court in RFA No.233 of 2003 and this Court
having observed that the suit which was filed by the plaintiffs in
O.S.No.3985 of 1993 in their individual capacity was not
maintainable, had confirmed the judgment and decree passed
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in the said suit with an observation that it is always open for
the plaintiffs or any other person to bring a suit in
representative capacity in compliance of order I Rule 8 of CPC.
It is under these circumstances, the present suit in
O.S.No.25259 of 2014 was filed invoking order I Rule 8 of CPC.
7. Undisputedly, the parties have led evidence in the
present suit and when the suit was at the stage of arguments,
the present application was filed under Order XXVI Rule 9 of
CPC on behalf of the plaintiffs with a prayer to appoint court
commissioner to inspect the suit schedule 'E' property for local
inspection as per the memorandum of instruction to be filed by
the parties.
8. The Co-ordinate Bench of this Court in the case of
SRI SHADAKSHARAPPA (supra) in paragraphs no.14 and 21
has observed as follows:-
"(14.) The discretion, though lies with the court,
as to appoint the Commissioner before the trial of after
the trial, the decision must be taken with due regard to
the possibility of reducing or eliminating the need to
record the oral evidence of witnesses to prove an issue
which could be effectively decided with the aid of the
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report. More often than not, in disputes relating to the
existence of pathway, stream, pond, well, or disputes
relating to the boundary between adjoining holders,
encroachment, easement of air and light, construction of
building in violation of setback rules, or relating to the
authenticity of a document, signature/thumb impression
to name a few by way of illustration, a report secured
before the trial may cut short the trial in as much as the
party relying upon the report may not examine multiple
witnesses to prove the matters covered by the report.
The party may simply rest his case based on his
evidence and the report. In a given case, the
appointment of the Commissioner before the
commencement of the trial may facilitate a focused trial.
In the case of Bhimappa Rayappa Chougala v. Shrikant,
2014 SCC OnLine Kar 12277: (2014) 2 KCCR 1652 at
page 1653, the Co-Ordinate Bench of this court has held
as under:
"4. xxx Only if the plaintiffs can show that the
defendants have encroached upon their property, they
would be entitled to the relief. Any amount of oral
evidence is not a substitute or sufficient to prove the
encroachment. To cut short the litigation to reduce
recording evidence, the trial Court in its wisdom,
thought it fit to appoint a Commissioner even before the
commencement of the trial. That is how the duration of
the litigation could be curtailed and speedy disposal of
the civil matter could be achieved."
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"(21.) Having examined the provisions referred to
above and given the fact that Order XXVI of the Code of
Civil Procedure is often invoked in the trial court, this
court is of the view, broadly speaking in the following
cases, the appointment of an appropriate Commissioner
as provided under Order XXVI of the Code is desirable.
(i) The dispute relating to the easement of air,
light, pathway, road, watercourse, etc.
(ii) The dispute relating to the boundary,
encroachment;
(iii) The dispute relating to forgery;
(iv) The dispute relating to the existence or
otherwise of a stream, pond drainage, watercourse,
road, pathway, pollution or nuisance.:".
9. A court commissioner can be appointed by a Court
either suo motu or at the request of parties if the Court finds
the oral and documentary evidence placed on record is not
sufficient to effectively adjudicate the dispute between the
parties. The present suit is filed for declaration of easmentary
rights in respect of public pathway and having regard to the
judgment in the case of SRI SHADAKSHARAPPA (supra)
wherein it is held that it is appropriate to appoint a court
commissioner in a suit filed relating to easmentary of a right,
pathway , road, water board etc., I am of the opinion that the
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Trial Court was fully justified in allowing the application. I do
not find any illegality or irregularity in the order impugned and
therefore I decline to entertain this petition.
10. Accordingly, the writ petition is dismissed.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
NMS
