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NC: 2026:KHC:16599 WP No. 5709 of 2025

HC-KAR

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF MARCH, 2026

BEFORE THE HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD

WRIT PETITION NO. 5709 OF 2025 (GM-CPC)

BETWEEN:

SMT. MADAMMA W/O LATE LINGEGOWDA

RESIDING AT GARDEN HOUSE IN SURVEY NO.229/1

MADAHALLI VILLAGE, KASABA HOBLI GUNDLUPET TALUK-571 111

…PETITIONER (BY SRI. MUJTABA H, ADVOCATE)

AND:

1. SRI. H.V. KUMAR S/O SRI. VENKATESH

MAJOR RESIDING AT DOOR NO.5 Digitally signed by KALIDASA ROAD, KUVEMPU TRUST

DHANALAKSHMI JAYALAKSHMIPURAM MURTHY Location: H IGH MYSURU-570 012

COURTOF KARNATAKA 2. SRI. VISHNU KEERTHI M.V S/O SRI. M. VENUGOPAL

AGED ABOUT 52 YEARS RESIDING AT DOOR NO. 1193/1

2^ND CROSS, ASHOKANAGARA MANDYA TOWN

MANDYA DISTRICT - 571 401 …RESPONDENTS

(BY SRI. H.S. SHANKAR, ADVOCATE FOR R2;

R1 – SERVICE OF NOTICE IS DISPENSED WITH VIDE ORDER DTD.23.03.2026)

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NC: 2026:KHC:16599 WP No. 5709 of 2025

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 17/02/2025 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND J.M.F.C., AT GUNDLUPET ON I.A.NO.XI IN O.S.NO.195/2016, VIDE (ANNEXURE -A) AND ALLOW THE INTERLOCUTORY APPLICATION BEING I.A.NO.XI FILED IN O.S.NO.195/2016 BY THE PETITIONER HEREIN UNDER ORDER XXVI RULE 9 READ WITH SECTIONS 94(E) AND 151 OF THE CODE OF CIVIL PROCEDURE ON THE FILE OF THE LEARNED PRINCIPAL CIVIL JUDGE AND J.M.F.C., AT GUNDLUPET AS

PRAYED FOR.

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

CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD

ORAL ORDER

This writ petition is filed by the plaintiff under Article

227 of the Constitution of India, challenging the order dated 17.02.2025 passed on I.A. No. XI, filed under Order XXVI Rule 9 r/w. Sections 94(E) and 151 of CPC in O.S. No. 195/2016, by the Principal Civil Judge and JMFC, Gundlupet, whereby the application filed for appointment of the Taluk Surveyor and AEE attached to Taluk

Panchayat as the Court Commissioner has been rejected.

2. The petitioner/plaintiff filed a suit in O.S.No.

195/2016 for declaration, cancellation of the sale deed and

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NC: 2026:KHC:16599 WP No. 5709 of 2025

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permanent injunction. Upon appearance, the respondent/ defendant filed a written statement. Based on the pleadings of the parties, issues were framed, and the

parties adduced their evidence.

3. During the cross-examination of DW1,

photographs were confronted to show that the suit schedule property had not been developed. Therefore, the plaintiff filed an application under Order XXVI Rule 9 of the

CPC for the appointment of a Court Commissioner.

4. During the cross-examination, the respondent/

defendant admitted that he had no objection to the appointment of a Court Commissioner to verify the nature

of the property.

5. This Court, in the case of SRI SHADAKSHARAPPA VS. KUMARI VIJAYALAXMI AND OTHERS reported in ILR 2023 KAR 3983, has issued guidelines for the appointment of a Court Commissioner.

The relevant paragraph is extracted below:

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“23. In the backdrop of the discussions made above, this Court cannot lose sight of the fact that in a large number of suits before the Trial Court, the applications are filed for the appointment of a Commissioner. In other words, this is one of the frequently invoked provisions of the Code. For this reason, this Court deems it desirable to summarise the broad guidelines that can be followed while exercising the power under Order XXVI Rules 9 and

10 of the Code of Civil Procedure.

a) The power of the court to appoint the Commissioner for local inspection or any other purpose provided in Order XXVI of the Code is discretionary. However, the said discretion is guided by not only Order XXVI Rules 9 and 10 of the Code but also the provisions of the Indian Evidence Act dealing with relevancy, expert opinion,

and the burden of proof.

b) The discretion to exercise the power under Order