1. SRI v. JAYARAMA REDDY, AGED ABOUT 66 YEARS, S/O VEMAREDDY, R/AT DODDABANASWADI VILLAGE, BANASWADI POST
Case Details
- 1 - NC: 2025:KHC:19914 WP No. 16094 of 2025 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 16094 OF 2025 (GM-CPC) BETWEEN: SRI. SANDEEP GANGADHAR AGED ABOUT 61 YEARS, S/O. D.N. GANGADHAR, R/AT NO.920, 1ST 'F' MAIN ROAD, II PHASE, GIRINAGAR, BANGALORE - 560 085. (BY SRI. SIDDHARTH SUMAN, ADVOCATE) AND: 1. SRI. V. JAYARAMA REDDY, AGED ABOUT 66 YEARS, S/O VEMAREDDY, R/AT DODDABANASWADI VILLAGE, BANASWADI POST , BANGALORE - 560 043. Digitally signed by NAGAVENI Location: High Court of Karnataka …PETITIONER
Legal Reasoning
2. SRI. MANJUNATHA K. AGED ABOUT 56 YEARS S/O S.M. KRISHNAREDY, R/AT SARAKKI VILLAGE, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK - 560 078. 3. SRI. S.M. KRISHNAREDDY, MAJOR IN AGE, S/O LATE DODDAMUNISWAMY REDDY, - 2 - NC: 2025:KHC:19914 WP No. 16094 of 2025 HC-KAR R/AT SARAKKI VILLAGE, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK - 560 078. …RESPONDENTS (BY SRI. RAJESH MAHALE, SENIOR COUNSEL FOR SRI. N. GURUVA REDDY, ADVOCATE FOR R1) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED 14.03.2025 PASSED BY THE HONBLE 75TH CITY CIVIL COURT AND SESSIONS JUDGE, BENGALURU (CCH-76) IN O.S.NO. 5689/2015 ON I.A. NO.9 FILED BY THE PETITIONER UNDER ORDER XXVI RULE 9, 10 AND 10(A) R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE AND I.E ANNEXURE - 'A' TO CONSEQUENTLY ALLOW THE I.A.NO.9 FILED BY THE PETITIONER IN THE HONBLE TRIAL COURT IN O.S.NO. 5689/2015 I.E., ANNEXURE-'A1' AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner - plaintiff in O.S. No.5689/2015 is at the doors of this Court calling in question an order passed by the concerned Court rejecting an application filed by the petitioner under Order XXVI Rules 9, 10 and 10(A) read with Section 15 of the C.P.C., seeking appointment of a Court Commissioner to identify the property of the petitioner. - 3 - NC: 2025:KHC:19914 WP No. 16094 of 2025 HC-KAR 2. Heard Sri. Siddharth Suman, learned counsel appearing for the petitioner, Sri. Rajesh Mahale, learned counsel appearing for respondent No.1 and have perused the material on record. 3. The present suit is the second-in-line. The petitioner - plaintiff had instituted a suit in O.S.No.6592/2004 for injunction against the same respondents - defendant Nos.1, 2 and 3. The said suit comes to be dismissed. The dismissal of the suit leads the petitioner - plaintiff before this Court in R.F.A.No.428/2009. The said appeal comes to be dismissed by the Co-ordinate Bench, in terms of its order dated 05.01.2025, affirming the findings of the concerned Court in O.S. No.6592/2004. The reasons rendered by the Co-ordinate Bench in R.F.A.No.428/2009, read as follows: "5. Given the above circumstances, while the learned counsel for the appellant is right in his contention that the suit could not have been dismissed even in respect of the site formed over land in Survey No.10/1A2. The finding that the plaintiff had not established his possession over the entire extent of the land described in the suit schedule cannot be faulted. Therefore, the plaintiff would do well to file a comprehensive suit to seek possession over the entire extent described in the sale deed, subject to the defences that may be available to the respondent herein. The suit being one for bare injunction - 4 - NC: 2025:KHC:19914 WP No. 16094 of 2025 HC-KAR and the court not having entered upon any other issue as regards title, it would not be possible for this court to reverse the judgment on the contention that the plaintiff would have succeeded atleast in respect of that portion of land, which was undisputedly in his possession. Leaving open any such remedy that the plaintiff may be entitled to, the appeal is dismissed." While rejecting the aforesaid appeal, the Co-ordinate Bench has observed that the plaintiff would do well by filing a comprehensive suit to seek possession over the entire extent as mentioned in the Sale Deed. The suit being one of bare injunction, the Court cannot enter upon the issues with regard to title. 4. Taking queue from the observation made by the Co-ordinate Bench as quoted supra, the petitioner - plaintiff has presented the subsequent suit in O.S.No.5689/2015. The issue is not with regard to new suits, but the petitioner filing an application under Order XXVI Rule 9 of the C.P.C., at the stage of arguments of the case to get a Court Commissioner appointed to identify the property of the plaintiff. 5. As a matter of fact, the plaintiff in the earlier suit itself, had filed an application under Order XXVI Rule 9 of the C.P.C., and a Court Commissioner had been appointed. - 5 - NC: 2025:KHC:19914 WP No. 16094 of 2025 HC-KAR The Court Commissioner had submitted his report drawing up a sketch with regard to the properties of the plaintiff and defendants. The Court now considers the same and rejects the application filed by the plaintiff under Order XXVI Rule 9 of the C.P.C., observing that the Court had already appointed Commissioner and the report of the Commissioner is already in place. The observation of the concerned Court is as follows: suit that shows "10. The plaintiff has filed this suit against defendants seeking reliefs of declaration, mandatory injunction and vacant possession of on Eastern side. On perusal of Ex.P.19 which in O.S.No.6592/2004 is filed before XXXVIII Addl. City Civil Judge, Bengaluru, by present plaintiff against defendant No.1 and 2, which is dismissed with costs. The appeal in RFA.No.428/2009 filed by the plaintiff against defendant No.1 and 2 before the Hon'ble High Court of Karnataka, Bengaluru, challenging the Judgment and Decree in O.S.No.6592/2004 is dismissed. The learned Counsel for defendant No.1 has produced the certified copy of I.A.No.2 filed by the present plaintiff under Order 26 Rule 9 R/w/Sec.75. R/w/Sec.151 of CPC seeking to appoint of Court Commissioner i.e. Assistant Director of Land Records, Bengaluru the certified copies of memo of instructions, and survey sketch." in O.S.No.6592/2004 and produced 13.04.2009, which dated: Except the aforesaid paragraph, there is no reason worth the name as to why the application of the petitioner would not merit consideration. - 6 - NC: 2025:KHC:19914 WP No. 16094 of 2025 HC-KAR 6. Learned counsel appearing for the petitioner - plaintiff and respondents - defendants both would contend that they had relied upon certain judgments including the judgment of the Co-ordinate Bench of this Court, which extensively considers the purport of Order XXVI Rule 9 of the C.P.C., as to when it should be permitted and when should not. That also does not bare consideration, while rejecting the application of the petitioner. 7. In that light, the concerned Court shall now reconsider the application filed by the petitioner by passing necessary orders, within two weeks from the date of receipt of a copy of the order, bearing in mind the observations made by the Co-ordinate Bench in W.P.No.201274/2022 dated 24.01.2023. 8. The observations made in the course of the order is only for the purpose of consideration of the case of the petitioner and submissions so made with regard to the order suffering from non-application of mind. - 7 - NC: 2025:KHC:19914 WP No. 16094 of 2025 HC-KAR 9. None of the observations would become binding upon the concerned Court to now pass an order in a particular manner in terms of what is afore-directed. 10. For the aforesaid reasons, the following:
Decision
ORDER (i) Writ petition is allowed in part; (ii) Proceedings in O.S.No.5689/2015 passed by the Principal City Civil and Sessions Judge, Bengaluru (CCH-76), is hereby quashed. (iii) The matter is remitted back to the hands of the concerned Court to pass appropriate orders on the application under Order XXVI Rule 9 of the C.P.C., bearing in mind the observations made in the course of the order. (iv) The order shall be passed within 2 weeks from the date of receipt of a copy of the order. All other contentions other than the one considered hereinabove, shall remain open. Sd/- (M.NAGAPRASANNA) JUDGE SJK List No.: 1 Sl No.: 25 CT: BHK