MRS SUNANDA MADTHA vs MR K VASANTHA SHETTY
- Court
- Karnataka High Court
- 1 -
HC-KAR
NC: 2026:KHC:60987
WP No. 27558 of 2026
CNR: KAHC010597612026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 30 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION NO. 27558 OF 2026 (GM-CPC)
BETWEEN:
1. MRS SUNANDA MADTHA
W/O. PRABHAKAR RONI MENON
AGED ABOUT 60 YEARS.
2. MRS. POORNIMA JYOTHI
D/O. PRABHAKAR RONI MENON,
AGED ABOUT 39 YEARS.
3.
DIANA SAVITHA
D/O. PRABHAKAR RONI MENON,
AGED ABOUT 35 YEARS,
ALL ARE R/AT DOOR NO.6-18-730, MENON
COMPOUND, NEAR SANGANIKETHANA
MANNAGUDDA, MANGALURU - 575003(DK)
ALL ARE REPRESENTED BY THEIR G.P.A. HOLDER
MR.ALWYN JAYAKAR MENON
S/O. LATE. MR.DEVAPALAN MENON
AGED ABOUT 59 YEARS,
R/AT MENON COMPOUND, NEAR SANGANIKETHANA
MANNAGUDDA, MANGALURU - 575 003(DK).
…PETITIONERS
(BY SRI. M SUDHAKAR PAI., ADVOCATE)
Digitally signed
by VINUTHA B
S
Location: High
Court of
Karnataka
AND:
1. MR K VASANTHA SHETTY
S/O. RAMA SHETTY,
AGED ABOUT 83 YEARS,
R/AT RAMA KRIPA
DOOR NO.6-18-725, NEAR SANGANIKETHANA
- 2 -
HC-KAR
NC: 2026:KHC:60987
WP No. 27558 of 2026
CNR: KAHC010597612026
MANNAGUDDA, MANGALURU - 575 003(DK).
…RESPONDENT
(BY SRI. K RAVISHANKAR., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI, TO QUASH THE ORDER DTD-25.04.2026 ON
I.A.NO.XIII IN O.S.NO.694/2021 ON THE FILE OF V
ADDITIONAL CIVIL JUDGE AND JMFC AT MANGALURU, D.K.
VIDE ANNEXURE-H HEREIN AND ALSO ORDER DTD 21.07.2026
ON I.A.NO.XIV IN O.S.NO.694/2021 ON THE FILE OF V
ADDITIONAL CIVIL JUDGE AND JMFC AT MANGALURU, D.K.
VIDE ANNEXURE-M HEREINB) ISSUE ANY OTHER WRIT, ORDER
OR DIRECTION, AS THIS COURT DEEMS FIT TO GRANT, UNDER
THE FACTS AND CIRCUMSTANCES OF THIS CASE, IN THE
INTEREST OF JUSTICE AND EQUITY AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND
ORAL ORDER
The present petition impugns the order dated
25.04.2026 rejecting the application filed in I.A. No. 13
under Order XXVI Rule 9 of the Code of Civil Procedure,
and the order dated 21.07.2026 rejecting the application
filed in I.A. No. 14 under Order XVIII Rule 17 of the Code
of Civil Procedure, seeking recall of DW1 for further cross-
examination.
- 3 -
HC-KAR
NC: 2026:KHC:60987
WP No. 27558 of 2026
CNR: KAHC010597612026
2. Learned counsel appearing for the petitioner submits
that the suit is for a declaration that the defendant has
encroached upon an extent of 0.32 cents, described as the
Suit Schedule-C property. It is contended that the
defendants have denied the alleged encroachment and
that the appointment of a Court Commissioner is
necessary to ascertain whether any encroachment has
occurred and, if so, its extent.
3. Learned counsel further submits that the application
seeking recall of DW1 for further cross-examination was
filed in view of two documents sought to be confronted to
the witness, one of which is Exhibit P33 in
O.S.No.660/2021, a certified copy of which was issued at
the time of the examination of DW1.
4. It is submitted that the Trial Court rejected the
application on hyper-technical grounds.
5. Per contra, learned counsel appearing for the
respondent submits that the Trial Court was justified in
- 4 -
HC-KAR
NC: 2026:KHC:60987
WP No. 27558 of 2026
CNR: KAHC010597612026
rejecting the application for appointment of a Court
Commissioner, as such appointment would amount to
collecting evidence on behalf of the plaintiff. It is
contended that, where encroachment is pleaded, the
burden lies on the plaintiff to prove the same and that
appointment of a Court Commissioner to establish the
plaintiff’s case is impermissible.
6. Learned counsel further submits that, on the date the
application seeking recall of DW1 was filed, the document
sought to be confronted was already available with the
petitioner and the suit was still at the stage of cross-
examination of DW1.
7. It is submitted that the application has been filed to
delay the proceedings and would cause hardship to the
respondent.
8. Considered the submissions made by learned counsel
for the parties and perused the impugned order.
- 5 -
HC-KAR
NC: 2026:KHC:60987
WP No. 27558 of 2026
CNR: KAHC010597612026
9. The suit is instituted seeking a declaration that the
defendants have encroached upon the 'C' Schedule
Property. The alleged encroachment is disputed by the
defendants.
10. The Co-ordinate Bench of this Court, in
W.P.No.201274/2022 dated 24.01.2023, has held that the
appointment of a Court Commissioner is desirable where
the dispute relates to boundary encroachment. It has
further held that a Court Commissioner may be appointed
even during the course of trial and that the
Commissioner's report may assist the plaintiff in
establishing the case.
11. In view of the aforesaid legal position, the Trial Court
committed an error in rejecting the application for
appointment of a Court Commissioner merely on the
ground that such appointment would amount to collecting
evidence.
- 6 -
HC-KAR
NC: 2026:KHC:60987
WP No. 27558 of 2026
CNR: KAHC010597612026
12. The petitioner filed an application seeking recall of
DW1 for further cross-examination to mark the document
at Annexure-J, which is marked as Exhibit P33 in
O.S.No.660/2021. The said application was rejected on the
ground that the petitioner had ample opportunity to mark
the document, as it had been issued by the Court well
before the closure of the cross-examination of DW1.
13. A perusal of the dates on which the copy of the
document was issued and the cross-examination of DW1
was closed reveals that the interval between the two dates
was very short. No doubt, the petitioner had an
opportunity to mark the document; however, having
regard to the short interval, the bona fides of the
application cannot be doubted. The petitioner's failure to
mark the document ought not to result in undue hardship
to the respondent.
- 7 -
HC-KAR
NC: 2026:KHC:60987
WP No. 27558 of 2026
CNR: KAHC010597612026
14. However, in the present case, any hardship caused to
the respondent can be adequately compensated by
imposing costs. In view of the above, the following order:
ORDER
i. Writ Petition is allowed.
ii. The order dated 25.04.2026 on I.A. No. 13 is hereby
set aside.
iii. Application in I.A. No. 13 made under Order XXVI
Rule 9 is hereby allowed.
iv. The Trial Court is directed to appoint a Court
Commissioner.
v. Both the parties shall file their memoranda of
instructions accordingly before the trial Court.
vi. Order dated 21.07.2026 on I.A. No. 14 is hereby set
aside.
- 8 -
HC-KAR
NC: 2026:KHC:60987
WP No. 27558 of 2026
CNR: KAHC010597612026
vii. Application made under Order XVIII Rule 17 is
hereby allowed.
viii. DW1 is hereby recalled, for further cross-
examination. The cross-examination shall be completed on
the day when the date is fixed by the Trial Court, subject
to payment of costs of Rs.10,000/- to DW1.
Sd/-
(K. V. ARAVIND)
JUDGE
TIN
List No.: 1 Sl No.: 19