IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 10473 OF 2023 (GM-CPC)

BETWEEN:

1. MR. GAJANDRAN MURTHY S/O GANGADHARAM MURTHY AGED ABOUT 34 YEARS.

2. MRS. ASHWINI GAJANDRAN W/O GAJANDRAN MURTHY AGED ABOUT 30 YEARS.

BOTH RESIDING AT NO.81 FRUIT STREET KAMARAJ ROAD CROSS BANGALORE - 560 001.

…PETITIONERS (BY SRI K.S. HARISH, ADV.)

AND:

Digitally signed by NANDINI M SRI NAVEEN KUMAR K S S/O KASI A Location: HIG H AGED ABOUT 36 YEARS COURT OF KARNATAKA R/AT NO.628, 14TH CROSS MANGALA LAYOUT, OIL MILL ROAD, KAMMANAHALLI BANGALORE - 560 084.

…RESPONDENT (BY SRI MANJUNATHA G, ADV.)

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH BY WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER DIRECTION IN THE NATURE OF WRIT, THE ORDER DTD 02/02/2022 PASSED BY THE XXXVII ADDL. CITY CIVIL JUDGE, BENGALURU (CCH-38) ON I.A.NO.2 IN O.S.NO.3297/2022, PER 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. Defendants have filed this petition under Article 227 of the Constitution of India with a prayer to set-aside the order dated 02.02.2023 passed by the Court of XXXVII Addl. City Civil Judge (CCH-38), Bengaluru, on IA No.2 in OS No.3297/2022.

2. Heard the learned counsel for the parties.

3. Respondent herein had filed OS No.3297/2022 before the jurisdictional Civil Court with a prayer to grant decree of permanent injunction restraining the defendants from putting up further construction in the suit schedule property. In the said suit, IA No.2 was filed by the plaintiff under Order XXVI Rule 9 of CPC to appoint a Court Commissioner for local inspection of the suit schedule property and submit a report regarding the illegal construction allegedly put-up by the defendants. The said application was opposed by the defendants by filing objections. The Trial Court vide the order impugned has allowed the said application.

4. Perusal of the material on record would go to show that IA No.2 was filed by the plaintiff before the Trial Court under Order XXVI Rule 9 of CPC even before the defendants had filed their written statement. It is trite that parties cannot be permitted to collect evidence by filing application to appoint a Court Commissioner for local inspection.

5. Learned counsel for the respondent/plaintiff has fairly submitted that the order impugned may be set-aside with liberty to the plaintiff to file appropriate application before the Trial Court under Order XXVI Rule 9 of CPC at an appropriate stage.

6. Considering the stage at which the application under Order XXVI Rule 9 of CPC was filed by the plaintiff before the Trial Court and also having regard to the submission made on behalf of the plaintiff, the order impugned dated 02.02.2023 passed by the Court of XXXVII Addl. City Civil Judge (CCH-38), Bengaluru, on IA No.2 in OS No.3297/2022 is hereby quashed.

Accordingly, writ petition is allowed. Plaintiff is at liberty to file appropriate application under Order XXVI Rule 9 of CPC at appropriate stage, if so advised.

7. In view of the disposal of the main petition, pending interlocutory application, if any, does not survive for consideration. Accordingly, the same is disposed off.

Sd/-

(S VISHWAJITH SHETTY)

JUDGE DN List No.: 1 Sl No.: 27