The appointment of a Court Commissioner for property measurement is not warranted when dimensions are admitted in correspondence or documented in a lease agreement, as allegations regarding the authenticity of such documents are matters to be decided during trial.

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI BY QUASHING THE ORDER DATED 24.02.2026 IN O.S.NO.353/2018 PASSED BY THE HON’BLE II ADDITIONAL CIVIL JUDGE AND JMFC-II, HUBBALLI, IN O.S.NO.353/2018 DISMISSING THE I.A.NO.8 FILED U/O. 26 R.9 R/W SEC.151 OF CPC, AS PER ANNEXURE-E IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,.

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

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

1. The petitioner filed this writ petition challenging the order on I.A.VIII filed under Order XXVI Rule 9 read with Section 151 of CPC dated 24.02.2026 passed in O.S. No.353/2018 by the learned II Additional Civil Judge and JMFC-III, Hubballi.

2. Brief facts leading rise to the filing of this writ petition are as follows:

3. The respondent filed a suit for ejectment and for recovery of arrears of rent of the suit property measuring 9x15 feet bearing CTS No.264, Municipal No.5340 situated at Pan Bazar, Hubli. The petitioner filed a written statement denying the averments made in the plaint. The petitioner filed an application in I.A.VIII praying to appoint a local advocate as a Court Commissioner to measure the suit schedule property. The said application was opposed by the respondent by filing statement of objections. The trial Court, after hearing the learned counsel for the parties, rejected the application vide order dated 24.02.2026. The petitioner aggrieved by the same, filed this writ petition.

4. Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent.

5. Learned counsel for the petitioner submits that the suit schedule property is less than 40 sq.mts. Hence, to ascertain the measurement of the suit schedule property, appointment of a Court Commissioner is necessary. Therefore, the provisions of Karnataka Rent Act is applicable and the suit filed by the respondent for ejectment is not maintainable. Further, he submit that, the trial Court without considering the said aspect has rejected the application. The said defence raised by the petitioner goes to the root of the case in regard to the maintainability of the suit. Hence, on these grounds, he prays to allow the writ petition.

6. Per contra, learned counsel for the respondent submits that the respondent prior to filing of the suit, had issued a notice of termination of tenancy under Section 106 of the Transfer of Property Act terminating the tenancy of the petitioner. The petitioner replied to the legal notice wherein the petitioner did not deny the measurement of the suit schedule property. He also contended that the respondent had produced the agreement of lease executed between the petitioner and the respondent, which clearly shows measurement of the suit schedule property is 40 sq.mts and the provisions of the Karnataka Rent Act are not applicable. Hence, the trial Court was justified in rejecting the application. On these grounds, he prays to dismiss the writ petition.

7. Perused the records and considered the submissions of the learned counsel for the parties.

8. It is an undisputed fact that the respondent is the owner of the suit schedule property and he has let out the suit schedule property to the petitioner. The respondent had issued a notice of termination to the petitioner under Section 106 of the Termination of Property Act terminating the tenancy of the petitioner. The petitioner replied to the legal notice. The petitioner has not denied the measurement of the suit schedule property i.e., 9 feet x 15 feet which is more than 40 sq.mts. When the petitioner has not denied the measurement of the suit schedule property in the reply to the notice, hence the question of appointing a Court Commissioner to inspect and measure the suit schedule property does not arise. The petitioner has filed I.A.VIII only with an intention to protract the proc