SHIVARAJ vs SHANTAPPA @ CHANDRASHEKAR

Court
Karnataka High Court

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IN THE HIGH COURT OF KARNATAKA



KALABURAGI BENCH

TH
DATED THIS THE 15 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

WRIT PETITION NO. 202521 OF 2025 (GM-CPC)


BETWEEN:

SHIVARAJ S/O HOLEYAPPA,
AGED ABOUT 33 YEARS,
OCC: AGRICULTURE AND EMPLOYEE
HUTTI GOLD MINES CO. LTD., HUTTI,
R/O ANWARI VILLAGE, PRESENTLY R/ AT H.NO 12/3,
G. R. COLONY, HUTTI CAMP, TQ. LINGASUGUR,
DIST. RAICHUR- 584122.


…PETITIONER
(BY SRI. GANESH S. KALBURGI, ADVOCATE)

AND:

1. SHANTAPPA @ CHANDRASHEKAR
S/O SHIVAPPA ANWARI,
AGE: 63 YEARS, OCC: AGRICULTURE AND
EMPLOYEE,
H. G. M. CO. LTD., HUTTI,
R/O. H, NO, 23/5 JETTI COLONY, HUTTI CAMP,
TQ. LINGASUGUR, DIST. RAICHUR- 584122.

2. BANUBIBHEGUM W/O SHABBIR PASHA SARJAPUR,
AGE: MAJOR, OCC: HOUSEHOLD,
MEMBER GRAMA PANCHAYAT, ANWARI VILLAGE,
TQ. LINGASUGUR, DIST. RAICHUR- 584120.











Digitally signed by
B NAGAVENI
Location: HIGH
COURT OF
KARNATAKA

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3. SHABBIR PASHA S/O NABISABSARJAPUR,
AGE: MAJOR, OCC: AGRICULTURE,
R/O ANWARI VILLAGE, TQ. LINGASUGUR,
DIST. RAICHUR- 584120.

4. THE PANCHAYAT DEVELOPMENT OFFICER,
GRAMA PANCHAYAT, ANWARI VILLAGE,
TQ. LINGASUGUR, DIST. RAICHUR- 584120.


…RESPONDENTS

(BY SRI. GOURISH S. KHASHAMPUR, ADVOCATE FOR R4;
R1 TO R3 ARE SERVED)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE AN APPROPRIATE WRIT, MORE SO IN THE NATURE OF
CERTIORARI AND GRANT THE FOLLOWING RELIEFS.

I) QUASH THE ORDER DATED 07.11.2024
PASSED IN O.S.NO. 187/2019 ON
I.A.NO.X IN THE FILE OF THE SENIOR
CIVIL JUDGE LINGASUGUR, THE
CERTIFIED COPY OF WHICH IS AT
ANNEXURE-F.

II) ISSUE ANY OTHER APPROPRIATE WRIT,
ORDER OR DIRECTION AS THIS HON’BLE
COURT MAY DEEM FIT TO GRANT IN THE
CIRCUMSTANCES OF THE CASE.


THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:

CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL ORDER

1. The petitioner filed this writ petition challenging the
order dated 07.11.2024 passed in I.A. No.X in O.S.
No.187 of 2019 by the learned Senior Civil Judge and
JMFC, Lingasugur (for short, ‘ the Trial Court ’)

2. The petitioner filed an application in I.A. No.X under
Order XXVI Rule 9 of the Code of Civil Procedure,
1908 (for short, ‘ the CPC ’) for appointment of the
Assistant Executive Engineer, Zilla Panchayat Sub-
Division, Lingasugur as the Court Commissioner for
inspection of the suit property.

3. In support of the application, the petitioner filed an
affidavit stating that the plaintiff filed a suit for
declaration and mandatory injunction, and it is stated
that in order to ascertain the actual encroachment
and installation of iron pillars over the property by
the defendants, the appointment of the Court
Commissioner is necessary.

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4. The said application was opposed by the respondents
by filing objections contending that if the application
is allowed, it would amount to collecting the evidence
and it is also contended that the plaintiff has clearly
admitted that he does not know how much property
is encroached by the defendants and hence, prays to
reject the application.

5. The Trial Court rejected the application by order
dated 07.11.2024. Hence, this writ petition.

6. None appears for the respondents.

7. Heard the learned counsel for the petitioner.

8. Learned counsel for the petitioner submits that the
petitioner filed a suit for declaration and mandatory
injunction contending that the respondents have
made an encroachment over the property of the
petitioner and in order to ascertain the extent of
encroachment, appointment of a Court Commissioner

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is necessary. He submits that merely by appointing
the Court Commissioner does not amount to
collecting the evidence. The said aspect was not
properly considered by the Court below and
committed an error in dismissing the petition. On
these grounds, he prays to allow the writ petition.

9. Perused the records and considered the submissions
of the learned counsel for the petitioner.

10. It is an undisputed fact that the petitioner filed a suit
for declaration and mandatory injunction alleging
that the respondents have encroached upon the
property of the petitioner and in order to ascertain
the extent of encroachment over the property of the
petitioner, the petitioner filed an application for
appointment of the Court Commissioner.

11. The Trial Court rejected the said application on the
ground that if the Commissioner is appointed, it
would amount to collecting the evidence.

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12. A Co-ordinate Bench of this Court had an occasion to
consider a similar issue in the case of
Sri.Shadaksharappa v. Kumari Vijayalaxmi and
1
others . The Co-ordinate Bench has laid the
guidelines in paragraph No.20 of the judgment,
which reads as follows:
“20. 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.

1
WP No. 201274 of 2022 disposed of on 24.01.2023 2023 - SCC OnLine
Kar 53 : ILR 2023 Kar 3983

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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 XXVI of the Civil
Procedure Code is not governed by
the form of the suit. The Court can
appoint the Commissioner in any
kind of suit, provided a report of
the Commissioner under Order
XXVI of the Code is necessary for
elucidating the matter in dispute.
c) The issue framed in the suit, or where
the issue is not yet framed, the
pleadings which give rise to issue/s
and the documents placed on
record would be a guide to
ascertain the ‘matter in dispute ’

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referred in Order XXVI Rule 9 of the
Code
d) The power to appoint the
Commissioner for local inspection or
scientific investigation/expert's
opinion can be invoked even suo
motu by the Court, without there
being an application by either of the
parties, if the Court deems it
appropriate to secure the report of
the Commissioner. However, the
appropriate reasons must precede
the order appointing the
Commissioner. And such orders are
to be passed only after hearing the
parties before it.
e) The Commissioner can be appointed
either before or after the
commencement of the trial.
However having due regard to the
nature of the controversy, if the
report is essential for elucidating
the matter in dispute, it is desirable
to have the local inspection before
the commencement of trial as it is

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likely to reduce the volume of oral
evidence in a given case.
f) In addition to the report, having
regard to Order XXVI Rule 10 of the
Code, the evidence taken by
Commissioner reduced in writing
can also be taken on record and
examined by the Court while
considering the report.
g) The report of the Commissioner is
not conclusive proof of what is
stated therein. The report is only a
piece of evidence, that the Court
has to examine based on the other
materials on record.
h) Report of the Commissioner need
not be formally marked for being
considered as evidence. Once
submitted to the Court, the report
is part of the Court record and can
be looked into by the Court.
i) The Court may in its discretion
examine the Commissioner on any
matter concerning the report. There
is no compulsion to examine the

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Commissioner. However, if the
objection is filed to the report, and
the party filing objection seeks to
examine the Commissioner then the
Commissioner should be examined.
In either case, once the
Commissioner is examined, the
Court having due regard to the
evidence, may reject or accept the
report in its entirety or in part,
provided there are materials to
justify such a finding on the report.
In appropriate cases, the merit of
the report can be considered at the
final hearing. While considering the
report at the final hearing, if the
Court finds that the report is
erroneous and fresh commission is
required, the Court may pass
appropriate order in this regard.
j) If the Court is dissatisfied with the
proceedings of the Commissioner as
found in Order XXVI Rule 10 (3), it
may direct further inquiry
depending on the facts. As a matter
of caution, it is clarified that
examination and order under order

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XXVI 10 (3) are only to verify if the
Commissioner has followed the
proper procedure while carrying out
his task.
k) The person who has filed an
objection to the report has the
option of cross-examining the
Commissioner to substantiate his
objections or even without cross-
examination, it is open to establish
that the report is inadmissible in

evidence.”

13. The Co-ordinate Bench has held that the discretion to
exercise the power under Order XXVI of the Civil
Procedure Code is not governed by the form of the
suit. The Court can appoint the Commissioner in any
kind of suit, provided a report of the Commissioner
under Order XXVI of the Code is necessary for
elucidating the matter in dispute.

14. Admittedly, the petitioner has contended that the
respondents have made an encroachment over the

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property of the petitioner and in order to ascertain
the extent of the encroachment, it is necessary to
appoint the Court Commissioner.

15. The Trial Court, without considering the proposition
laid down by the Co-ordinate Bench of this Court in
the case of Shadaksharappa , has rejected the
application.

16. In this view of the matter, I am of the view that the
impugned order passed by the Trial Court is arbitrary
and erroneous, as such, I am inclined to interfere

with the impugned order.

17. Accordingly, I proceed to pass the following order:
ORDER
(i) The writ petition is allowed ;
(ii) The impugned order dated
07.11.2024 passed in I.A. No.X in
O.S. No.187 of 2019 by the

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learned Senior Civil Judge and
JMFC, Lingasugur is set aside .
(iii) Accordingly, I.A. No.X is allowed
as prayed for.


Sd/-
(ASHOK S. KINAGI)
JUDGE

RK
List No.: 1 Sl No.: 26
Ct:pk