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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 6^TH DAY OF JANUARY 2021

BEFORE

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

WRIT PETITION No.2432 OF 2016 (GM-CPC)

BETWEEN:

1 .

MR. K. JAYARAM

S/O V. KRISHNA IYER,

AGED ABOUT 74 YEARS,

2 .

MR. J. ARUNKUMAR

S/O K. JAYARAM

AGED ABOUT 40 YEARS

BOTH ARE RESDIING AT SB-104, SHRIRAM SPANDANA,

CHALLAGHATTA, BENGALURU-560037.

…PETITIONERS

(BY SRI. AMIT.A. MANDGI, ADVOCATE)

AND:

MR. V.M. KRISHNAMURTHY

S/O LATE V. MUNISWAMY NAIDU,

AGED ABOUT 47 YEARS,

BUILDER AND PROMOTER OF R.K. APARTMENTS,

SITUATED AT NO.452/552/2,

BEHIND RAMAMURTHYNAGAR POLICE STATION,

TAHAMBUCHETTYPALYA MAIN ROAD,

BENGALURU-560016.

AND ASLO AT

FLAT NO.G-3, R.K. HOYASLA RESIDENCY

3RD MAIN ROAD, 9TH CROSS,

HOYSALNAGAR, BENGALURU-560 016.

…RESPONDENT

(RESPONDENT SERVED - UNREPREENTED)

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE

CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER

DT: 04.06.2015 PASSED BY THE XI ADDL. CITY CIVIL &

SESSIONN JUDGE AT BENGALURU IN O.S.NO. 8298/2006 VIDE

ANNEXURE-A AND ETC.

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THIS W.P. COMING ON FOR PRELIMINARY HEARING IN 'B'

GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-

ORDER

This petition by the plaintiffs in O.S.No.8298/2006 is

directed against the impugned orders on I.A.Nos.7 and 8

filed by the petitioners, whereby the trial Court rejected the

said application filed by the petitioners.

2. Heard learned counsel for the petitioners. Though

the

respondent

was

served,

he

has

remained

unrepresented and has not chosen to contest this petition.

3. The material on record indicates that it is not in

dispute that the Court Commissioner was appointed to

conduct local investigation of the schedule property in the

suit filed by the petitioner herein against the respondent-

defendant. Pursuant thereto, the said Court Commissioner

conducted local investigation of the schedule property on

28.09.2014 and submitted his report. The respondent-

defendant having chosen not to file objections to the

Commissioner's report, the petitioners/plaintiffs filed their

objections to the report along with an application I.A.No.7

for permission to file their objections to the Commissioner's

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report. The petitioners also filed I.A.No.8 for permission to

cross examine the Court Commissioner. Though the

respondent/defendant did not file objections to both the

applications and had chosen not to contest the same, the

trial Court proceeded to pass the impugned order rejecting

both I.A.Nos.7 and 8, aggrieved by which, the petitioners

are before this Court by way of the present petition.

4. Learned counsel for the petitioners while

reiterating the various contentions urged in the petition and

referring to the documents produced, submits that that

having regard to the Order XXVI Rule 10(2) of CPC, which

enables an aggrieved party not only to file objections to the

report of the Court Commissioner, but also to cross

examine the Commissioner and in the light of the decision

of this Court in the case of Parappa & Others Vs.

Bhimappa & Another reported in ILR 2008 KAR 1840,

the impugned order passed by the trial Court deserves to

be set aside.

5. Order XXVI Rule 10 (2) of CPC, reads as under:

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"(2) Report and depositions to be evidence in

suit. -- The report of the Commissioner and the

evidence taken by him (but not the evidence

without the report) shall be evidence in the suit and

shall form part of the record; but the Court or, with

the permission of the Court, any of the parties to

the suit may examine the Commissioner personally

in open Court touching any of the matters referred

to him or mentioned in his report, or as to his report,

or as to the manner in which he has made the

investigation."

6. In Parappa's case (supra), this Court while

dealing with the said aspect, has held as under:

"18. The utility of the science of thumb impression

and its comparison to find out the executi