Sri v Prasad Vs Sri Manu N

2 . SMT. MANJULA, D/O LATE SRI. Y. VENKATAPPA, AGED ABOUT 57 YEARS, RESIDENT OF GIDDAPANAHALLI VILLAGE, SULIBELE POST, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT – 562 129.

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3 . SMT. VARALAKSHMI, D/O LATE SRI Y. VENKATAPPA, AGED ABOUT 56 YEARS, RESIDENT OF SULIBELE VILLAGE AND POST, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT – 562 129.

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4 . SMT. VIJAYAMMA, D/O LATE SRI Y. VENKATAPPA, AGED ABOUT 51 YEARS, RESIDENT OF ARODI VILLAGE, SASALU HOBLI, DODDABALLAPUR TALUK, BENGALURU RURAL DISTRICT – 561 204.

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... RESPONDENTS

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(BY SRI PIYUSH KUMAR JAIN D., ADVOCATE FOR C/R-1)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO A) ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT, ORDER OR DIRECTION TO SET ASIDE THE IMPUGNED ORDERS DATED 05.08.2025 PASSED ON I.A. NO. 20, IN COM. O.S. NO. 119/2021, BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE (DEDICATED COMMERCIAL COURT) BENGALURU RURAL DISTRICT, BENGALURU, VIDE ANNEXURE –A.

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IN WRIT PETITION No.21514 OF 2025

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BETWEEN:

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1 . SRI V.PRASAD S/O LATE Y. VENKATAPPA, AGED ABOUT 52 YEARS.

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2 . KUM. DIVYA, D/O. V. PRASAD, AGED ABOUT 22 YEARS.

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3 . KUM. GNANA, D/O. V. PRASAD, AGED ABOUT 20 YEARS. 4 . MASTER HEMADRI, S/O. V. PRASAD, AGED ABOUT 11 YEARS. 4 BEING MINOR IS REPRESENTED BY HIS NATURAL GUARDIAN AND FATHER SRI V. PRASAD. ALL ARE RESIDENTS OF: GIDDAPANAHALLI VILLAGE, SULIBELE HOBLI, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT – 562 129.

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... PETITIONERS

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(BY SRI C.S.VINOD, ADVOCATE)

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AND:

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1 . SRI MANU N., S/O M. NAGARAJ, AGED ABOUT 39 YEARS, RESIDING AT. NO. 151/10, RUSTUMJI VILLAS, WHITEFIELD, BENGALURU – 560 066.

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2 . SMT. MANJULA, D/O LATE SRI Y. VENKATAPPA, AGED ABOUT 57 YEARS, RESIDENT OF GIDDAPANAHALLI VILLAGE, SULIBELE POST, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT – 562 129.

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3 . SMT. VARALAKSHMI, D/O LATE SRI Y. VENKATAPPA, AGED ABOUT 56 YEARS, RESIDENT OF SULIBELE VILLAGE AND POST, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT – 562 129.

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4 . SMT. VIJAYAMMA, D/O LATE SRI Y. VENKATAPPA, AGED ABOUT 51 YEARS, RESIDENT OF ARODI VILLAGE, SASALU HOBLI, DODDABALLAPUR TALUK, BENGALURU RURAL DISTRICT – 561 204.

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... RESPONDENTS

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(BY SRI PIYUSH KUMAR JAIN D., ADVOCATE FOR R-1)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTION TO SET-ASIDE THE IMPUGNED ORDERS DATED 17.07.2025 PASSED ON I.A. NO. 22, IN O.S. NO. 119/2021, BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE (DEDICATED COMMERCIAL COURT) BENGALURU RURAL DISTRICT, BENGALURU, VIDE ANNEXURE-A.

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THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 28.11.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CAV ORDER

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Petitioners in both these cases are common, they are defendants 1, 2, 3 and 4 in Commercial O.S.No.119 of 2021. The petitions call in question an order of the concerned Court allowing the application I.A.No.20 filed under Order 26 Rule 9 r/w Section 75 of the CPC regarding appointment of Court Commissioner and dismissing the application filed by defendants 1 to 4 filed in I.A.No.22 seeking modification of the order appointing the Tahsildar as Court Commissioner.

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Heard Sri Seenappa K., learned counsel for petitioners in W.P.No.25227 of 2025 and Sri C S Vinod, learned counsel for petitioners in W.P.No.21514 of 2025 and Sri Piyush Kumar Jain D, learned counsel appearing for respondent No.1 in both the petitions.

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Facts in brief, germane, are as follows:

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3.1. On 16-12-2015, the petitioners/defendants 1 to 4 have

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entered into a Joint Development Agreement for construction of a

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warehouse in the suit property. The issue is not with regard to the nuances of the Joint Development Agreement. Dispute arose between the plaintiffs and the defendants. Accordingly, the 1^st respondent institutes a suit in O.S.No.1118 of 2021 seeking damages including Rs.16.50 crores towards construction of front warehouse, against the defendants and other respondents. The suit was transferred to the Commercial Court and renumbered as Commercial O.S.No.119 of 2021. On 30-01-2020, defendants 1 to 4 filed their written statements denying the claims of the plaintiffs. Issues were framed on 20-12-2021. Evidence is adduced thereafter.

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3.2. An application under Order 26 Rule 9 of the CPC in I.A.No.15 comes to be filed by the 1^st respondent before the concerned Court seeking appointment of the Court Commissioner. The said application had been rejected by the concerned Court, the rejection of which was challenged before this Court in W.P.27706 of 2024. The said writ petition comes to be disposed on 20-06-2025.

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A memo was moved for ‘being spoken to’ on the score that the Assistant Director of Land Records was directed to assess the value

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of construction of the warehouse which appears to be erroneous. Therefore, the correction was that the application had to be allowed, only insofar as ascertaining the existence of construction of Kaaludaari. The order passed by this Court in W.P.27706 of 2024 is as follows:

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The afore-narrated facts are not in dispute. The issue relates to an application filed under Order XXVI Rule 9 of the CPC seeking appointment of the Court Commissioner to ascertain construction put up in the suit schedule property. The petitioner is the plaintiff has instituted a suit in the aforesaid Commercial OS seeking recovery of money and compensation in respect of the suit schedule property. Therefore, the dispute revolves around money. Money is in the form of rent and if rent has to be ascertained, the dispute is with regard to whether there is a Kaalu Dhari or not is necessary to be noticed. In that light, I deem it appropriate to notice the application so filed by the petitioner, it reads as follows:

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"1. I state that I have filed the present suit seeking the reliefs of recovery of money and compensation.

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I state that the suit said involves money relating to costs of construction and further compensation in respect of my share wherein it is impossible to construct because of the existence of Kalu Dari, and further rents received by the Defendants which is rightfully my share.

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I state that the Defendants have denied my claims in respect of the value of the cost of construction and existence of construction on the Kalu Dari.

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I state that Defendant No.1 for the first time during his cross examination has claimed that the

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warehouse constructed on the western side is not on top of the Kalu Dari and that in fact it goes in between the two warehouses.

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I state that Defendant No.1 during his cross examination as DW1 has enquivocally stated that he has no objection for a commissioner appointed by this Hon'ble Court to verify the status of the warehouse and the constructions put up on the suit schedule property.

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I state that it is necessary for a commission to be appointed by this Hon'ble Court for local investigation.

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I state that if the accompanying application is allowed, no harm or prejudice will be caused to the Defendants. On the other hand, if the application is not allowed, I will be put to irreparable loss and injury.

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In light of the reasons stated above, I pray that this Hon'ble Court may be pleased to allow the accompanying application and appoint a commission and provide necessary instructions to the said commission.

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All that is stated above is true and correct to the best of my knowledge, information, and belied."

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The petitioner in the affidavit holds that the defendants have denied the claim in respect of the value of the cost of construction and the existence of construction on the Kaalu Dhari. The objections filed to the application is vindication of the statement of the petitioner.

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The concerned Court rejects the application, notwithstanding the judgment in the case of SRI SHADAKSHARAPPA Vs. KUMARI VIJAYALAXMI reported in 2023 SCC OnLine Kar 53 ,placed before it. Therefore, in the light of the learned counsel appearing for the respondents having qualified objections to the application being allowed, I deem it appropriate to allow the application in a peculiar circumstances. The submission of the learned counsel appearing

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for the respondents is that the Court Commissioner has to examine not only the construction, but all incidentals to the claim that is made by the plaintiff. I therefore, deem it appropriate to allow the application and direct the Court Commissioner to draw a report qua the claim of the petitioner in the application and also bear in mind the observations of the coordinate bench in the case of SRI SHADAKSHARAPPA (supra), where the co-ordinate bench has held as follows:

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" 21. Having examined the provisions referred to above and given the fact that Order XXVI of the Civil Procedure Code is often invoked in the Trial Court, this Court is of the view, broadly speaking in the following cases, the appointment of an appropriate Commissioner as provided under Order XXVI of the Code is desirable.

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(i) The dispute relating to the easement of air, light, pathway, road, watercourse, etc.

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(ii) The dispute relating to the boundary, encroachment;

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(iii) The dispute relating to forgery;

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(iv) The dispute relating to the existence or otherwise of a stream, pond, drainage, watercourse, road, pathway, pollution, or nuisance.

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(Emphasis supplied)

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22. The examples given above are not exhaustive but merely illustrative. The guidelines in this order should not be construed as having exhaustively listed the cases in which the Commissioner can be appointed. Nor the observations should be construed as having diluted or expanded the discretion vested with the Trial Court in such matters.

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23. This Court is also conscious of the fact that in quite a large number of cases, the Commissioners are appointed by the Trial Courts. By the time the report is submitted to the Court, quite often, if not all the time, a lot of time is spent awaiting the report. To save the precious time of the Court and to streamline the

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procedure, as far as practicable, the following procedures may be adopted;-

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a) The Court may fix the date and time for local inspection, directing the parties to be present at the disputed property, to avoid the process of issuance of notice to the parties by the Court Commissioner.

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b) The Court shall also fix the time frame for the parties to file a memo of instructions and shall scrutinize the instructions submitted and if need be reframe the instructions to focus the attention on the matters in dispute.

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c) If the Court feels that the Commissioner is required to submit a report on a particular matter or a question, the Court shall also frame the specific question to be answered by the Commissioner.

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d) It is desirable to specify in the order whether or not the parties are entitled to submit an additional memo of instructions to the Commissioner at the time of local inspection

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e) The time frame be fixed for submitting the report to the Court and while fixing the time, due regard must be had to the nature of the commission work and the urgency involved in the matter;

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f) If the survey of any land is ordered to be conducted by a head of the survey department or any other designated officer, the Court having regard to the nature of the work may also specify in the order, whether the Commissioner appointed is authorized to delegate the work to some other person in the same department. g) Wherever practicable, the Court shall direct the Court Commissioner, to famish a number of true copies of the report to the counsel representing the parties to the suit, while submitting the report to the Court.

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h) Time schedule should also be fixed for filing objections to the report of the Commissioner if any.

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l) In all cases, where the report of the Commissioner is awaited, the Court may if practicable proceed with the trial or other stages of the proceeding."

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In the light of the facts and the law laid down by

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the co-ordinate bench, the petition deserves to succeed.

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For the aforesaid reasons, the following:

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ORDER

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i) Writ petition is allowed.

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ii) The impugned order dated 04.09.2024 passed by the Court of XI Additional District and Sessions Judge, (Dedicated Commercial Court), Bengaluru Rural District, Bengaluru on I.A.No.15 filed in Com.O.S.No.119/2021 stands quashed.

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iii) The application filed by the petitioner under Order XXVI Rule 9 stands allowed.

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iv) The concerned Court shall appoint a Court Commissioner, who would have a brief of drawing up a report as sought for in the application and also draw all the incidental claims that would emerge at the time of such inspection.

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v) The inspection and the submission of the report shall conclude within four weeks from the date of receipt of copy of this order.”

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and the order on ‘being spoken to’ dated 11-07-2025 reads as follows:

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“This Court disposed the petition in terms of its order dated 20.06.2025.

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A Memo for being spoken to is filed by the respondents before this Court on the ground that there is some obfuscation in the order. The obfuscation is on account of the ADLR directing to assess the value of construction of the warehouses as well, which appears to be erroneous. Therefore, the application has to be allowed only insofar ascertaining the existence of construction on the kaalu daari. The petition being disposed, is restricted only to the aforesaid relief.

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Insofar as the relief of value of construction is concerned, the petitioner is at liberty to file a fresh application before the concerned Court and the concerned Court to answer the same in accordance with law, strictly on merit.

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This order shall be treated as part and parcel of the earlier order dated 20-06-2025.”

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The matter was remitted back to the concerned Court with liberty to file fresh application for appointment of Commissioner. The 1^st respondent/plaintiff files I.A.No.20 under Order 26 Rule 9 r/w Section 75 of the CPC seeking appointment of the Court Commissioner. The concerned Court passes the impugned order dated 05-08-2025, which reads as follows:

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“ORDERS ON I.A. NO.XX

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Learned Advocate for plaintiff filed this I.A. under Order XXVI Rule 9 R/W Section 75 of Code of Civil Procedure to appoint a Court Commissioner to conduct local investigation and ascertain the cost of construction incurred by the plaintiff towards the warehouse constructed on the front portion of the suit schedule property, purportedly in accordance with the plan

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sanction provided by the defendants, which has subsequently been discovered to be fabricated.

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In the affidavit filed in support of the said I.A, Sri. Manu.N, plaintiff submitted that averments made in the plaint may be read as part of the affidavit. This suit is filed for recovery of the cost incurred by the plaintiff towards construction of warehouse on the front portion of the suit schedule property. During the course of trial, he had adduced evidence claiming the cost of construction. However the defendants have consistently alleged that the actual expenditure incurred by the plaintiff has been overstated. In the crossexamination of DW. 1, he has submitted no objection to appoint a Court Commissioner to ascertain actual expenditure incurred by the plaintiff. He has filed annexed application seeking appointment of the Commissioner. In the writ petition No.27706/2024. Hon'ble High Court of Karnataka, Bengaluru granted permission to file fresh application seeking appointment of Court Commissioner. Hence, he has filed this application.

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Statement of objections to the said application is filed by the defendant No.1 stating that seeking appointment of Commissioner for local inspection to ascertain the constructions put up in the suit schedule property is highly misconceived, filed just to drag on the matter on one pretext or the other to make illegal gain. There are several lacunas in the evidence of PW.1 and PW.2. PW.1 has deposed on the strength of an Engineer in respect of all aspects of construction since its inception. PW.2, an Architect/Engineer got marked 7 documents to substantiate his evidence. No reasons have been cited to show the necessity to appoint Court Commissioner to estimate the value of the suit schedule property. By explaining the agreement executed for construction work and the evidence adduced by PW.1 and 2 and by explaining the order passed by the Hon'ble High Court of Karnataka in the Writ Petition No.277706/2024, Advocate for the defendant No.1 prays to dismiss the application with exemplary costs.

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Heard the arguments and perused the records. Now the point arising for consideration is:

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"Whether the plaintiff has made out grounds to appoint Court Commissioner for

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ascertaining the cost incurred for construction of the warehouse by the plaintiff?

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It is answered in the Affirmative for the following:

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REASONS

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Learned Advocate for the plaintiff submitted arguments stating that to ascertain what is the cost of construction of warehouse, he has filed the annexed application seeking appointment of Court Commissioner. He relied upon the citation of Judgment rendered by Hon'ble High Court of Karnataka, Bengaluru in W.P.Nos.44410 and 51359/2014 (GM-CPC) in the case of Classic Infracon Bangalore Private Limited Vs. UPLUS Batteries Pvt. Ltd., particularly at para-9, 10, 12 and 13, relying upon the lay down in the case of N.Swamygowda Vs. Ramegowda reported in ILR 2010 KAR 897 , it is held that Court Commissioner may be appointed to avoid miscarriage of justice.

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Per contra, learned Advocate for defendant No.1 submitted arguments stating that the suit is filed under the Specific Reliefs Act seeking refund of security deposit, cost of the construction, value of the land lost by the plaintiff and rent with interest. At para-16 of the plaint, amount incurred towards cost of construction is mentioned as 16,50,00,000/-. Document produced by the plaintiff is not even touching 50% of the claim of the plaintiff. To defeat evidence adduced by PW.1 and 2 and to create evidence, plaintiff has filed the annexed application. Law laid down in the citation relied upon by the Advocate for the plaintiff is in respect of valuation of the damages and hence not applicable to the facts and circumstances of the case in hand. For the said reasons, he prays to dismiss the application.

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It is true that previous application filed by the plaintiff seeking appoint of Court Commissioner came to be rejected by this court. In the writ petition preferred by the plaintiff to test upon the said order, Hon'ble High Court of Karnataka set aside the order, directed the plaintiff to file fresh application seeking appointment of Commissioner.

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Now it is settled position of law that even for collection of evidence, Commissioner may be appointed. When there is

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specific direction from the Hon'ble High Court of Karnataka to appoint Commissioner, much discussion is not necessary to determine the point for consideration. Hence, point for consideration is answered in the ' Affirmative ' and proceed to pass the following:

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ORDER

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I.A.No.20 filed by plaintiff under Order XXVI Rule 9 R/W Section 75 of Code of Civil Procedure is hereby allowed.

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To hear regarding appointment of Commissioner and to file memo of instructions and to fix Commissioner fee.”

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The order appointed the Tahsildar as Court Commissioner to conduct commission work.

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3.3. Another application in I.A.No.22 was preferred by

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defendants 1 to 4, the petitioners herein, seeking modification of the order dated 14-07-2025, to conduct commission work as per the memo of instruction given by the plaintiff. The concerned Court hears the matter, frames a point for consideration, which reads as follows:

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“Whether there is any need to modify the order dated 14.07.2025 replacing the Tahshildar by appointing ADLR as court commissioner for execution of commission work?

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The issue is whether there was need to modify the order replacing the Tahsildar and appointing Assistant Director of Land Records as Court Commissioner for execution of commission work. The application for modification comes to be rejected by the following order:

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“REASONS

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Sri C.S. Vinod advocate for defendant No.1 to 4 submitted arguments stating that, order dated 20.06.2025 passed in WP No.27706/2024 relied upon the law laid down in the case of Shadakshrappa so far as points to be taken into consideration at the time of appointment of commissioner. In the said order at para no.23(f) it is stated that, if the survey of any land is ordered to be conducted by the head of the survey department or any other designated officer, the court having regard to the nature of the work may also specify in the order, whether the commissioner appointed is authorized to delegate the work to some other persons in the civil department. After notification issued by the Government of Karnataka, the division of survey is bifurcated from the revenue work under Karnataka Revenue Act and the ADLR has made head for survey works in Taluk level. Further highlighted the order passed by the Hon'ble High Court of Karnataka dated 11.07.2025 in respect of clarification sought by the defendants.

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Per contra Sri Sandeep Cristoper advocate for plaintiff submitted arguments stating that, there is no need to modify the order dated 14.07.2025 appointing Tahshildar, Hoskote Taluk as court commissioner to conduct commission work as per memo of instruction given by plaintiff and defendants and to submit report. According to learned advocate for the plaintiff no where in the order Hon'ble High Court of Karnataka directed this court to appoint ADLR as commissioner to conduct to commission work. Tahshildar is a competent person to identify the position of the Kaaludari as on 19.04.2023. For the said reasons, learned advocate for the plaintiff prays to dismiss the application.

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Advocate for plaintiff filed IA No.15 U/O 26 Rule 9 R/w Sec.75 of Code of Civil Procedure to appoint commission for local investigation and to ascertain the construction put up on the suit schedule property. At para no.3 of the affidavit filed in support of the said I.A., it is mentioned the existence of construction of the Kaaludari. Now the nature of work to be assign to the commissioner is to ascertain the existence and identification of the position of kaaludari as on 19.04.2023.

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Meticulous reading of the directions issued by the Hon'ble High Court of Karnataka and the guidelines made in the case of Shadaksharappa court has to take into consideration the nature of the work to be assign to the commissioner. In this case nature of work of ascertaining the existence and identification of Kaaludaari may be made by the Tahshildar or any person authorized by him to delegate the work. Therefore, there is no need to modify the order dated 14.07.2025 appointing Tahshildar, Hoskote Taluk as court commissioner to conduct commission work as per memo of instruction given by plaintiff and defendants. Hence, point for consideration is answered in the negative and following order is made:

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ORDER

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I.A. filed by the defendant No.1 to 4 U/S 151 of Code of Civil Procedure is not allowed.”

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Both these orders are called in question in these separate petitions.

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The learned counsel appearing for the petitioners and the 1^st respondent would in unison submit that the order of the concerned Court is passed, as if this Court has directed allowing of the application in a particular manner. The learned counsel for the petitioners would submit that the order impugned bears no reasons.

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Per-contra, the learned counsel for the respondents would submit that though the order is not reasoned, this Court itself can pass the order appointing a Court Commissioner, who is necessary, in the peculiar facts and circumstances of the case.

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I have given my anxious consideration to the submissions

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made by the learned counsel for the respective parties and have perused the material on record.

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The afore-narrated facts are not in dispute. The issue now is, who should be appointed as a Court Commissioner. The learned counsel appearing for the petitioners submits that the Tahsildar who is now appointed as a Court Commissioner has nothing to do with the survey department. Measurements will have to be taken even with regard to the kaaludaari or otherwise. He would submit that under Section 18 of the Karnataka Land Revenue Act, 1964, the survey officials do not come under the Tahsildar. The Tahsildar being a Revenue Officer and Administrative Head, will not be able to do the job of a technical post of the Assistant Director of Land

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Records. The respondents would, however, contend that Tahsildar may take assistance of any person. This Court need not direct appointing of Assistant Director of Land Records, but can continue with the Tahsildar with appropriate orders, he would defend the order of the concerned Court.

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In the light of the aforesaid submission and contra submission, what would unmistakably emerge is, the conundrum revolves round the appointment of a Court Commissioner. Issues are two fold one, to ascertain the cost of construction or the existence of Kaaludaari and the other, measurements to be done. As contended by the petitioners, Tahsildar would not be in a position to do the measurement, it would necessarily be the job of the Assistant Director of Land Records, as he is the man in the survey department and he would not be in a position to assess the revenue, as he is not a man in the Revenue Department.

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To give a quietus to the issue, in the peculiar facts of the case, as a one off solution to a one off situation, I deem it appropriate to appoint both the Tahsildar and the Assistant Director

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of Land Records as Court Commissioners. The Assistant Director of Land Records shall assist the Tahsildar. Their respective reports be placed before the concerned Court and the concerned Court shall pass necessary orders, on the report/s so submitted. Leaving all other contentions open and for the aforesaid reasons, I pass the following:

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ORDER

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(i) The Writ Petitions are allowed.

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(ii) The impugned orders dated 05-08-2025 and 17-07-2025 passed on I.A.Nos.20 and 22 in Commercial O.S.No.119 of 2021 on the file of the XI Additional District and Sessions Judge, Bengaluru stands quashed.

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(iii) The Tahsildar and the Assistant Director of Land Records are appointed as Court Commissioners. The Assistant Director of Land Records to measure the existence and the dimension of kaaludaari and any other measurements necessary. The Tahsildar would, on receipt of the report from the Assistant Director of Land Records, assess the revenue and place it before the concerned Court.

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(iv) The Court Commissioners so appointed, shall execute the commission work and submit their report as observed hereinabove, within 8 weeks from the date of receipt of the copy of this order.

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Sd/(M.NAGAPRASANNA)

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JUDGE

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bkp CT:MJ

Sri v. Prasad v Sri Manu N

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Sri v. Prasad v Sri Manu N

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