IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 11092 OF 2025 (GM-CPC)

BETWEEN:

SRI L.MAHADEVASWAMY S/O LATE M.LINGAPPA, AGED ABOUT 44 YEARS, RESIDING AT NO.188, MARIGUDI BEEDI, ALANAHALLI, MYSURU CITY - 570 028.

…PETITIONER (BY SRI Y V PRAKASH, ADVOCATE FOR SRI Y K NARAYANA SHARMA, ADVOCATE)

AND:

1. SRI K. NAGESH S/O LATE K S KESHAVAMURTHY Digitally signed by AGED ABOUT 84 YEARS.

SHARADAVANI B Location: High Court of 2. SMT. UMA, Karnataka W/O DR. K.NAGESH, AGED ABOUT 74 YEARS.

RESPONDENT NOS.1 AND 2 ARE RESIDING AT THEIR FARM HOUSE AT HOSA KEMPAIAHANA HUN VILLAGE, KASABA HOBLI, T.NARASIPURA TALUK - 571 124.

ALSO AT NO.169, K.E.B.ROAD, BYRAPURA, T.NARASIPURA TOWN-571124.

…RESPONDENTS (BY SRI H.C.SHIVARAMU, ADVOCATE)

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 03.03.2025 PASSED ON I.A.NOS.12 AND 13 PASSED IN O.S.NO.69/2021 BY THE COURT OF SENIOR CIVIL JUDGE, T.NARASIPURA, AS PER ANNEXURE-H AND REJECT THE IA NOS.12 AND 13 FILED BY THE RESPONDENT OR PASS OTHER SUITABLE ORDERS BY ALLOWING THIS WRIT PETITION IN THE INTEREST OF JUSTICE, ETC., THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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

ORAL ORDER

This petition by the defendant in O.S.No.69 of 2021 is directed against the impugned order dated 03.03.2025, whereby the application, I.A.Nos.12 and 13 filed by the respondents/plaintiffs under Order XXVI Rule 9 CPC for appointment of a Court Commissioner was allowed by the Trial Court by holding as under:

"Advocate for plaintiff has filed IA No.9 under Section 151 CPC to re open the stage for further evidence of PW-1; IA No.10 under Order XVIII Rule 17 CPC to recall PW-1 for the said purpose; IA Nos.11 and 14 under Order VII Rule 14(3) CPC to produce the documents in the evidence of PW-1; IA No.12 under Order XXVI Rule 9 CPC to appoint the RFO, Department of Forest, T. Narasipura Taluk as a Commissioner to identify the age, number, girth of trees i.e. teak wood, hercules (Yellow teak) standing in the suit property and report the same to the court; IA No.13 under Order XXVI Rule 9 CPC to appoint the Senior Assistant Director, Horticulture Department, T. Narasipura as a Commissioner to identify the age, number of coconut trees and other horticulture trees standing in the suit property and report the same to the court.

Advocate for defendant submits no objection to IAs No.9 to 11. But, he has filed objection to IAs No.12 to 14.

In objection filed to IAs No.12 and 13, the defendant has contended that the Commissioners can not be appointed to collect evidence; the oral evidence can not be placed to contradict the registered agreement of sale since it is prohibited under Section 92 of the Indian Evidence Act; there is a false allegation on the part of the defendant that the agreement of sale was executed for Rs.1,50,50,000/-.

In the objection filed to IA No.14, it is contended that the documents intended to be produced are not necessary to the case and those documents relate to other property and not to suit property.

Heard the arguments of both sides and perused the materials on record.

Learned counsel for the defendant has filed written arguments in support of IAs No.12 and 13 and the rulings of Hon’ble High Court of Karnataka reported in ILR 2005 KAR 4397 (Sky Lines Advertising (P) Ltd. V/s. National Airport Authority and another) on the principle of law that the oral evidence cannot be accepted to negate the documentary evidence as per Section 92 of the Indian Evidence Act; AIR 2007 KANT 133 (Miss Renuka Vs. Sri Thamanna), W.P. No.7271/2017 dated 24.04.2017 (Smt. Puttamadamma and others Vs. Smt. Mahadevamma), W.P. No.9149/2011 dated 09.04.2013 (Sri. G.J Govindashetty Vs. Sri Jagadeesha and others) and W.P. No.112948/2024 dated 06.01.2015 (Madivalappa Vs. Neelavva) on the principle of law that the commissioner cannot be