IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 25TH DAY OF JUNE, 2025

BEFORE

THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 3747 OF 2021 (GM-CPC)

BETWEEN:

SHRI. PUTTAMADAPPA S/O SRI BASAPPA AGED ABOUT 65 YEARS, RESIDING AT YEDAHALLI VILLAGE JAYAPURA HOBLI MYSORE TALUK – 570 001.

…PETITIONER

(BY SRI ADITYA BHAT., ADVOCATE)

AND:

Digitally signed by NAGAVENI Location: High Court of Karnataka

1. SHRI BASAVARAJAPPA S/O LATE SRI PATEL MADAPPA AGED ABOUT 70 YEARS, RESIDING AT YEDAHALLI VILLAGE JAYAPURA HOBLI MYSORE TALUK – 570 001.

2. SRI M.MAHADEVAPPA S/O LATE SRI PATEL MADAPPA AGED ABOUT 68 YEARS, RESIDING AT YEDAHALLI VILLAGE JAYAPURA HOBLI

HC-KAR

NC: 2025:KHC:22264 WP No. 3747 of 2021

MYSORE TALUK – 570 001.

• 3. SHRI SHIVANANJAPPA S/O SRI BASAPPA AGED ABOUT 67 YEARS, RESIDING AT YEDAHALLI VILLAGE JAYAPURA HOBLI MYSORE TALUK – 570 001.
• 4. SHRI SHIVANNA @ NANJAPPA S/O LATE SHRI BASAPPA AGED ABOUT 58 YEARS, YEDAHALLI VILLAGE JAYAPURA HOBLI MYSORE TALUK MYSORE DISTRICT – 570 001.
• 5. SHRI BASAVARAJU S/O LATE SHRI BASAPPA AGED ABOUT 42 YEARS RESIDING AT YEDAHALLI VILLAGE JAYAPURA HOBLI MYSORE TALUK – 570 001.
• 6. SMT.JAYAMMA D/O LATE SHRI BASAPPA W/O SHRI MANJU AGED ABOUT 70 YEARS, RESIDING AT YEDAHALLI VILLAGE JAYAPURA HOBLI MYSORE TALUK – 570 001.

NC: 2025:KHC:22264 WP No. 3747 of 2021

7. SHRI NAGARAJ S/O LATE SHRI BASAPPA AGED ABOUT 31 YEARS, RESIDING AT YEDAHALLI VILLAGE JAYAPURA HOBLI MYSORE TALUK – 570 001.

…RESPONDENTS

(BY SRI C.M.JAGADEESH AND SRI NAGARJUN J., ADVOCATES FOR R-1 AND R-2; R-3 TO R-7 ARE SERVED AND UNREPRESENTED)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS IN O.S.NO.607/2010 FROM THE COURT OF 2 ND ADDITIONAL 2ND CIVIL JUDGE AND JMFC, MYSORE; QUASH THE ORDER DATED 03.02.2021 PASSED BY THE 2ND ADDL. CIVIL JUDGE AND JMFC MYSORE IN I.A.NO.15 IN O.S.NO.67/2010 VIDE ANNEXURE-A.

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

CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

ORAL ORDER

Petitioner is before this Court calling in question an order

dated 03-02-2021 passed on IA No. 15 in OS No. 607 of 2010.

The petitioner is plaintiff No. 2 in OS No. 607 of 2010.

2. The respondent 1 and 2/defendants Nos.1 and 2 have also instituted a suit in OS No.302 of 2008. The suit filed by the present plaintiff is for declaration and the suit filed by the respondents 1 and 2/defendants 1 and 2 in O.S.No.302 of 2008 is for permanent injunction.

3. Heard the learned counsel Sri Aditya Bhat appearing for petitioner and Sri C M Jagadeesh and Sri Nagarjun J, learned counsel appearing for respondents 1 and 2.

4. The respondents/defendants are said to be the permissive users of the property allegedly belonging to the petitioner. The dispute between the two leads both of them before the concerned Court in the afore-quoted original suits. The issue in the lis is not with regard to the merit of the matter. The issue is with regard to rejection of an application filed by the petitioner under Order 26 Rule 9 of the CPC seeking appointment of a Court Commissioner to measure and identify the property which is described in the suit schedule. The concerned Court rejects the application on the score that the petitioner had filed a similar application in suit OS No. 302 of

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2008 which comes to be rejected by the concerned Court and the rejection of which is affirmed by the coordinate bench of this Court.

5. The learned counsel appearing for the petitioner submits that the applications would not operate as res judicata as is observed by the concerned Court, as there is complete change in circumstance for filing another application. Filing of an application in the suit instituted by the defendants would not come in the way of the petitioner filing an application in the suit instituted by him seeking relief of declaration. He would contend that if a month's time is granted the report would be before the Court and the concerned Court could pass necessary orders in accordance with law.

6. Per contra, the learned counsel appearing for the respondents 1 and 2 would contend that identical application was filed in OS No. 302 of 2008, which comes to be rejected and the rejection was challenged before this Court and the coordinate bench has rejected the challenge, thereby affirming the order passed by the concerned Court. The learned counsel

would submit that verbatim similar application is filed in the subject suit i.e., OS No. 607 of 2010 at the stage of arguments only as a ruse to drag the proceedings. He would seek dismissal of the petition.

7. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.

8. The afore-narrated facts and the link in the chain of events are not in dispute. The history to the issue need not be narrated, as the issue revolves round a narrow compass with regard to the rejection of an application filed under Order 26 Rule 9 of the CPC. The petitioner is the plaintiff and the respondents are the defendants in the subject petition. The respondents 1 and 2 are plaintiffs and the petitioner is the 1st defendant in OS No. 302 of 2008. In OS No. 302 of 2008 petitioner files an application under Order 26 Rule 9 of the CPC seeking appointment of Court Commissioner. For what purpose is discernible from the order passed by the coordinate bench. The application is filed for the following purpose:

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3. The suit of the plaintiff is for permanent injunction. In the said suit, defendant No.1/petitioner herein filed application under Order 26 Rule 9 of CPC seeking for appointment of Commissioner to measure, demarcate and for local inspection in respect of land bearing Sy.No.90/3B measuring 8 guntas, in Sy.Nos. 90/1 and 90/2 measuring 06 aguntas and 05 guntas, respectively situated at Yedahalli village, Jayapura Hobli, Mysuru Taluk."

"…. …. ….

The application seeking appointment of a Court Commissioner is filed to measure, demarcate and for local inspection in respect of land in Survey No.90/3B measuring 8 guntas, Survey Nos. 90/1 and 90/2 measuring 6 guntas and 5 guntas respectively in Yedahalli Village, Jayapura Hobli, Mysore Taluk. This application comes to be rejected. The rejection of which is challenged before the co-ordinate Bench of this Court in Writ Petition 5438 of 2020. The co-ordinate Bench rejects the petition and affirms the order passed by the concerned Court in terms of its order dated 09-03-2020 by the following observations:

4. Learned counsel for the petitioner would submit that the suit filed for declaration and possession by the petitioner herein is clubbed with the suit filed by the respondents/plaintiffs in O.S.No.302/2008. The appointment of Commissioner would be absolutely necessary for identification of the suit schedule property

"…. …. ….

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in the larger extent of land and it is not for collection of evidence as observed by the trial Court. The trial Court misunderstood the application filed by the petitioner and came to a wrong conclusion that the application is filed for the collection of evidence and to find out the possession of the property. Hence it is submitted that the order of the trial Court is wholly erroneous and requires to be interfered with.

5. Having heard the learned counsel for the petitioner and on perusal of the writ petition papers, I am of the view that no ground is made out to interfere with the order passed by the trial Court. The suit of the plaintiff in O.S.No.302/2008 is for permanent injunction in respect of the suit schedule property. It is for the plaintiff to prove his case that he would be entitled to permanent injunction against the defendants in respect of his property. Further, the plaintiff has to prove his possession over suit schedule property as on the date of suit by placing evidence on record. In that circumstance, the trial Court is justified in rejecting the application."

After the rejection of the said petition on 09-03-2020, the suit progresses and the matter is at the stage of arguments, as both the suits are clubbed and are being heard together. In the suit filed by the petitioner i.e., suit for declaration in OS No. 607 of 2010 comes the subject application under Order 26 Rule 9 of the CPC. The application reads as follows:

"For the reasons stated in the accompanying affidavit, the Applicant/the plaintiff No. 2 humbly pray's that, this Hon'ble court be pleased to order for appointment of a court commissioner to measure, demarcate and for identification of land bearing Sy No. 90/3B (old No. 90/3A) measuring 8 guntas and land bearing Sy No. 90/1 and 90/2 measuring 5 guntas and 6 guntas respectively purchased through two reg. sale deeds, dated situated at Yadahalli Village, Jayapura

Hobli, Mysuru taluk, by allowing this application, in the interest of justice and equity."

If the application filed by the petitioner now is juxtaposed to what had been filed earlier and read in tandem, what would unmistakably emerge is, the petitioner has filed an application seeking verbatim the same relief, same language and same purpose. Therefore, the petitioner has filed the subject application notwithstanding the dismissal of the same and its dismissal being affirmed by the coordinate bench, undoubtedly as a ruse to drag the proceedings before the concerned Court.

9. The learned counsel for petitioner would make a herculean effort to contend that the two applications are different and for different purposes and the changed circumstances have led him to file the second application. The purpose is seen when the two are read in tandem which are quoted hereinabove. The purpose is nothing but to drag the proceeding and proceedings have been dragged, as the interim order has been granted by this Court in the year 2021 itself. The petitioner has filed the same application all over again and has challenged the same, all over again.

10. In the light of the aforesaid reasons, I do not find any warrant to interfere with the order passed by the concerned Court rejecting the application of the petitioner filed under Order 26 Rule 9 of the CPC.

Accordingly, petition stands dismissed.

Sd/- (M.NAGAPRASANNA) JUDGE

BKP List No.: 1 Sl No.: 35