O. SRI v. PRASAD, AGED ABOUT
Case Details
- 1 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 27706 OF 2024 (GM-CPC) BETWEEN: MR. MANU N, S/O M. NAGARAJ, AGED ABOUT 37 YEARS, RESIDING AT NO. 151/10, RUSTUMJI IMJI VILLAS, WHITEFIELD, BENGALURU - 560 066. (BY SRI. C. JAGADISH, ADVOCATE AND SRI. PIYUSH KUMAR JAIN D, ADVOCATE) …PETITIONER AND: 1. MR. V. PRASAD, Digitally signed by NAGAVENI Location: High Court of Karnataka S/O. LATE Y. VENKATAPPA, AGED ABOUT 50 YEARS, RESIDING AT GIDDAPPANAHALLI VILLAGE, SULIBELE HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT, BENGALURU - 562 129. 2. MS. DIVYA, D/O. SRI. V. PRASAD, AGED ABOUT 22 YEARS, RESIDING AT GIDDAPPANAHALLI VILLAGE, HOSKOTE TALUK, BENGALURU RURAL DISTRICT, BENGALURU - 562 129. - 2 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR 3. MS. GNANA, D/O. SRI. V. PRASAD, AGED ABOUT 20 YEARS, RESIDING AT GIDDAPPANAHALLI VILLAGE, HOSKOTE TALUK, BENGALURU RURAL DISTRICT, BENGALURU - 562 129. 4. MASTER HEMADRI,
Legal Reasoning
petitioner to this Court in the subject petition. 4. The learned counsel appearing for the petitioner would submit that appointment of the Court Commissioner for ascertainment of the rent is imperative in the case at hand. The reason being the dispute is with regard to rent payable. If the Kaalu Dhari passes through the warehouses, no lease deed could have been executed for the purpose of rent to M/s Fine Tech Corporation Private Limited. Since the dispute is with regard to the said rent, the Commissioner would only draw a report with regard to the existence of the Kaalu Dhari through warehouses-1 or 2. It is therefore, in this circumstances, it is necessary to allow the application seeking appointment of the Court Commissioner. - 6 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR 5. Per contra, the learned counsel appearing for the respondents would though initially put up vehement defence on the order passed by the concerned Court, he would finally contend if this Court were to consider the application favourably, it should be clearly indicated that the Court Commissioner shall look into all the necessary aspects revolving around the issue. 6. I have given my anxious consideration to the submissions made by the respective learned counsel and have pursued the materials available on record. 7. 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 - 7 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR 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: "1. 2. 3. 4. 5. 6. 7. I state that I have filed the present suit seeking the and recovery compensation. of money reliefs of 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. 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. I state that Defendant No.1 for the first time during his cross examination has claimed that the 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. 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. I state that it is necessary for a commission to be appointed by local investigation. this Hon'ble Court for 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. - 8 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR 8. In light of the reasons stated above, I pray that this Hon'ble Court may be pleased to allow the accompanying a commission and provide necessary instructions to the said commission. application appoint and All that is stated above is true and correct to the best of my knowledge, information , and belied." 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. 8. 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 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 - 9 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR 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: "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. (i) The dispute relating to the easement of air, light, pathway, road, watercourse, etc. (ii) The dispute encroachment; relating to the boundary, (iii) The dispute relating to forgery; (iv) The dispute relating to the existence or stream, pond, drainage, otherwise or watercourse, nuisance. road, pathway, pollution, of a (Emphasis supplied) 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. 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 - 10 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR lot of time is spent awaiting the report. To save the precious time of the Court and to streamline the procedure, as far as practicable, the following procedures may be adopted;- 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. 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. 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 the Commissioner. to be answered by 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 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; 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. - 11 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR 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. h) Time schedule should also be fixed for filing objections to the report of the Commissioner if any. the l) In all cases, where Commissioner if practicable proceed with the trial or other stages of the proceeding." is awaited, the Court may the report of 9. In the light of the facts and the law laid down by the co-ordinate bench, the petition deserves to succeed. 10. For the aforesaid reasons, the following:
Arguments
S/O. SRI. V. PRASAD, AGED ABOUT 10 YEARS, SINCE MINOR, REPRESENTED BY HIS NATURAL GUARDIAN, MR. V. PRASAD, RESIDING AT GIDDAPPANAHALLI VILLAGE, HOSKOTE TALUK, BENGALURU RURAL DISTRICT, BENGALURU - 562 129. 5. SMT. MANJULA, D/O. LATE SRI. Y VENKATAPPA, W/O MUNIRAJU AGED ABOUT 54 YEARS RESIDING AT GIDDAPPANAHALLI VILLAGE, SULIBELE HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT, BENGALURU - 562 129. 6. SMT. VARALAKSHMI, D/O. LATE SRI. Y VENKATAPPA, W/O. CHINNA KRISHNA, AGED ABOUT 53 YEARS, RESIDING AT SULIBELE VILLAGE AND POST, HOSKOTE TALUK, BENGALURU RURAL DISTRICT, BENGALURU - 562 129. 7. SMT. VIJAYAMMA D/O LATE SRI. Y VENKATAPPA, W/O. LAKSHMINARAYANA, - 3 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR AGED ABOUT 49 YEARS, RESIDING AT ARODI VILLAGE, SASALU HOBLI, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT, BENGALURU - 560 067. …RESPONDENTS (BY SRI. SEENAPPA K, ADVOCATE AND SRI. S. RAJASHEKAR, ADVOCATE FOR R1 TO R4; VIDE ORDER DATED 04.11.2024 NOTICE TO R5 TO R7 DISPENSED WITH) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 04.09.2024 PASSED BY THE COURT OF XITH 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 (ANNX-A) AND CONSEQUENTLY APPOINT A COURT COMMISSIONER BY ALLOWING THE SAID I.A.NO.15 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 is before this Court calling in question an order dated 04.09.2024 by which the concerned Court rejects application filed by the petitioner in IA No.15 under Order XXVI Rule 9 read with Section 75 of the Code of Civil Procedure ('the CPC' for short) seeking appointment of the Court Commissioner. - 4 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR 2. Heard Shri C. Jagadish, learned counsel and Shri Piyush Kumar Jain D., learned counsel appearing for the petitioner and Shri Seenappa K., learned counsel and Shri S. Rajashekar, learned counsel appearing counsel for respondent Nos.1 to 4. 3. Facts in brief germane are as follows: On 16.12.2015, the petitioner and the respondents enter into a joint development agreement and execute an irrevocable power of attorney in favour of the consortiums of warehouses qua the suit schedule property. In terms of joint development agreement qua plan and other statutory necessities were sought to be executed. Construction gets completed on 01.02.2018. Construction would be of warehouse-1. The respondents then requested the petitioner to allow them to lease the warehouse-1 to tenants and permit them to collect the entire rent on the warehouse-1, temporarily. In terms of which a lease deed comes to be executed leasing the premises to one M/s. Fine Tech Corporation Private Limited. The dispute arose between the two and are before the Commercial Court in Com.O.S.No.119/2021. The issue in the lis does not pertain to - 5 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR the merit of the matter before the Commercial Court. The petitioner files an application under Order XXVI Rule 9 of the CPC seeking appointment of the Court Commissioner to ascertain the cost of construction of the warehouses and to ascertain the existence of Kaalu Dhari, which runs through the warehouse-2 or between two warehouses. The application comes to be dismissed. The dismissal of which is has driven the
Decision
ORDER i) Writ petition is allowed. 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. iii) The application filed by the petitioner under Order XXVI Rule 9 stands allowed. - 12 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR 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. v) The inspection and the submission of the report shall conclude within four weeks from the date of receipt of copy of this order. Sd/- (M.NAGAPRASANNA) JUDGE JY List No.: 1 Sl No.: 5 CT: BHK - 13 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU [MR MANU N VS. MR V PRASAD AND OTHERS] 11.07.2025 (VIDEO CONFERENCING / PHYSICAL HEARING) CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER ON BEING SPOKEN TO This Court disposed the petition in terms of its order dated 20.06.2025. 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. Insofar as the relief of value of construction is concerned, the petitioner is at liberty to file a fresh application - 14 - NC: 2025:KHC:21414 WP No. 27706 of 2024 HC-KAR before the concerned Court and the concerned Court to answer the same in accordance with law, strictly on merit. This order shall be treated as part and parcel of the earlier order dated 20-06-2025. Sd/- (M.NAGAPRASANNA) JUDGE bkp List No.: 2 Sl No.: 1