IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH 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.

…PETITIONERS Digitally signed by NANDINI M S (BY SRI V.B. SHIVAKUMAR, ADV.)

Location:

HIGH COUR T 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 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 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 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