IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 5^TH DAY OF JANUARY, 2026

BEFORE

THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

WRIT PETITION NO. 37810 OF 2025 (GM-CPC)

BETWEEN:

PALACHANDA UTHAPPA

S/O LATE POOVAIAH,

AGED 72 YEARS,

HOSKOTE VILLAGE,

BILGUNDA POST,

AMMATHI NAD,

SOUTH, KODAGU – 01

…PETITIONER

(BY SRI. SAMPATH KUMAR A. V., ADVOCATE)

AND:

1. THE GOVERNMENT OF KARNATAKA

REPRESENTED BY THE DEPUTY COMMISSIONER

KODAGU DISTRICT,

MADIKERI TOWN, NORTH KODAGU – 571 201

Digitally signed

by CHANDANA 2. THE CHIEF EXECUTIVE

B M OFFICER SOCIAL WELFARE DEPARTMENT,

Location: High

ZILLA PANCHAYATH, MADIKERI TOWN,

Court of

Karnataka NORTH KODAGU – 571 201

3. THE EXECUTIVE OFFICER.

SOCIAL WELFARE DEPARTMENT,

PONNAMPET TOWN,

SOUTH KODAGU – 571 201

4. THE THASILDAR,

VIRAJPET TALUK, VIRAJPET TOWN,

SOUTH KODAGU – 571 218

5. MONQUE.

SON OF LATE THUKRA, HOSKOTE VILLAGE

56 YEARS, MAJOR BILGUNDA POST, AMMATHI NAD, SOUTH KODAGU – 571 211.

…RESPONDENTS (BY SRI. NEELAKANTAPPA K. PUJAR, HCGP FOR R1 TO R4;

NOTICE TO R5 IS DISPENSED WITH ON 05.01.2026)

THIS W.P. IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO-SET ASIDE THE IMPUGNED ORDER ON I.A NO. 11 DATED 10.11.2025 IN O.S NO. 59/2016 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, VIRAJPET ON THE APPLICATION FILED BY THE PAINTING UNDER ORDER 26 RULE 9, VIDE ANNEXURE-K AND CONSEQUENTLY ALLOW THE APPLICATION AND APPOINT THE MEMBER OF BAR, FOR CONDUCTING SURVEY AND DEMARCATION OF SUBJECT LAND AND ALSO TO FIND THE AGE OF COFFEE, PEPPER WITH THE ASSISTANCE OF SURVEYOR IN THE INTEREST OF JUSTICE AND EQUITY.

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

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL ORDER

This petition by the plaintiff in O.S.No.59/2016 on the file of Senior Civil Judge and JMFC, Virajpet (hereinafter referred to as ‘the Trial Court’ for short) is directed against the impugned order dated 10.11.2025 passed on I.A.No.XI, whereby the said application filed by the petitioner-plaintiff under Order XXVI Rule 9 of CPC for appointing Court Commissioner to conduct local inspection was rejected by the Trial Court.

2. Heard learned counsel for the petitioner and learned HCGP for the respondent Nos.1 to 4 and perused the material on record.

3. For the order proposed, service of notice to respondent No.5 is dispensed with.

4. A perusal of the material on record will indicate that the petitioner – plaintiff instituted the aforesaid suit against respondent Nos.1 to 4/State and respondent No.5 for declaration and permanent injunction and other reliefs in relation to the suit schedule immovable properties. The suit is contested only by defendant Nos.1 to 4 and not by defendant No.5. After completion of evidence by both sides, the petitioner filed the instant application in I.A.No.XI under Order XXVI Rule 9 of CPC for appointment of Court Commissioner to conduct legal inspection of the suit schedule immovable properties on the ground that there was dispute regarding identity, location, measurement etc., of the properties claimed by both sides and as such, it was necessary to conduct legal inspection. The said submission having been opposed by the defendant, the Trial Court proceeded to pass the impugned order rejecting the application on the ground that the appointment of the Court Commissioner tantamounts to collection of evidence.

5. Under these circumstances, I am of the considered opinion that the findings recorded by the Trial Court while rejecting the instant application is contrary to the judgment of Rahul S Shah vs Jinendrakumar Gandhi - (2021) 6 SCC 418 as well as judgment of this Court in Shadaksharappa vs. Kumari Vijayalaxmi - 2023 SCC Online Kar 53. It is also pertinent to note that since the material on record discloses that there exists a serious dispute with regard to identity, schedule, measurements, location etc., of the property claimed by both sides, it would be just and appropriate to allow the application since no prejudice will be caused if the instant applicat