Karnataka High Court
S. Maheshwarappa vs Rudrappa on 5 December, 2025
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NC: 2025:KHC:51268
WP No. 4842 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MS. JUSTICE TARA VITASTA GANJU
WRIT PETITION NO. 4842 OF 2021 (GM-CPC)
BETWEEN:
S.MAHESHWARAPPA
S/O SHIVALINGAPPALA SIDDARAMAPPA,
AGED ABOUT 85 YEARS,
RETD. TEACHER,
MADHUKESHWARA NILAYA,
5TH CROSS, VIDYA NAGARA,
BLOOD COLLECTION CENTRE ROAD,
SHIMOGA,
(AS PER PLAINT)
CORRECT ADDRESS IS
S/O LATE SIDDARAMAPPA,
AGED ABOUT 85 YEARS,
RESIDING AT MADHUKESHWARA NILAYA,
5TH CROSS, VINAYAKA NAGARA,
SHIVAMOGGA-577 201.
Digitally signed by S NOW RESIDING AT CHIKKAGANGOOR VILLAGE,
NOORUNNISABEGUM
Location: High Court of CHANNAGIRI TAUK-577 215.
Karnataka ...PETITIONER
(BY SRI. PRAKASHA.H.C., ADVOCATE)
AND:
1. RUDRAPPA
S/O HANUMAPPA,
AGED ABOUT 73 YEARS,
RESIDING AT CHIKKAGANGOOR VILLAGE,
CHANNAGIRI TAUK, PIN CODE-577 215.
2. SHANMUKHAPPA
S/O SANKAPPA,
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WP No. 4842 of 2021
HC-KAR
AGED ABOUT 60 YEARS,
RESIDING AT CHIKKAGANGOOR VILLAGE,
CHANNAGIRI TALUK,
PIN CODE-577 215.
3. YOGARAJA
S/O SIDDRAMAPPA,
AGED ABOUT 46 YEARS,
RESIDING AT CHIKKAGANGOOR VILLAGE,
CHANNAGIRI TALUK,
PIN CODE-577 215.
4. BASAVARAJAPPA
S/O HANUMAPPA,
AGED ABOUT 65 YEARS,
RESIDING AT CHIKKAGANGOOR VILLAGE,
CHANNAGIRI TALUK,
PIN CODE-577 215.
...RESPONDENTS
(BY SRI. MANJUNATHA PATTANNA SHETTY., ADVOCATE
FOR R1 TO R4)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DTD. 15.02.2021 ON I.A.NO.7 IN O.S.NO.203/2016 ON
THE FILE OF THE II ADDL. CIVIL JUDGE AND JMFC, AT
CHANNAGIRI, WHICH AS PER ANNEXURE-E.
CONSEQUENTLY ALLOW THE I.A.NO.7 WHICH IS AS PER
ANNEXURE-C FILED BY THE PETITIONER / DEFENDANT IN
O.S.NO.203/2016 ON THE FILE OF II ADDL. CIVIL JUDGE
AND JMFC AT CHANNAGIRI AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE
THEREIN AS UNDER:
CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU
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NC: 2025:KHC:51268
WP No. 4842 of 2021
HC-KAR
ORAL ORDER
1. The present petition seeks to challenge an order on I.A.No.7 dated 15.02.2021 in O.S.No.203/2016. passed by the II Additional Civil Judge & JMFC, Channagiri [hereinafter referred to as the "Impugned Order"]. By the Impugned Order, the petitioner-defendant's application under Order 26 Rule 9 read with Section 151 of CPC for appointment of a Court Commissioner has been dismissed.
2. This Court after briefly hearing the parties on 04.12.2025 had passed the following order:
"1. The present petition has been filed seeking to challenge the order dated 15.02.2021. By the impugned order, an application under Order XXVI Rule 9 of CPC filed by the petitioner/defendant for appointment of Court Commissioner has been dismissed.
2. Briefly the facts are that the plaintiff filed a suit before the Trial Court seeking a relief of restraining the petitioner/defendant and his workers from putting up any obstruction against the three ventilators which exists on the Eastern wall of the suit property.
3. The suit was filed in the year 2016. Subsequently, this petition was filed in the year 2021. It is not disputed by the parties that the entire trial had already been completed prior to the filing of this petition.-4-
NC: 2025:KHC:51268 WP No. 4842 of 2021 HC-KAR
4. A co-ordinate Bench of this Court, by an order dated 09.03.2021 has stayed the proceedings before the Trial Court.
5. Learned counsel for the respondents submits that only final arguments remain to be conducted in the matter and the matter would have been decided within four months from that date, while the stay has resulted in hiatus of almost five years.
6. Let the parties remain present before the Court on 05.12.2025 at 2:30 p.m."
3. Learned Counsel appearing for the petitioner/defendant submits that the petitioner/defendant is a senior citizen and hence was unable to appear and neither has any person from his family appeared. Respondent No.3 is however present in person.
4. Learned Counsel for the petitioner/defendant further submits that the application was filed for examination on an issue relating to the eastern wall of the house between the house of the plaintiff and the defendants. He submits that the application ought to have been allowed by the Trial Court.
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5. Learned counsel for the respondents/plaintiffs opposes these contentions. He submits that originally the respondents/plaintiffs filed a suit against the father of the petitioner/defendant being O.S.No.705/1965 claiming easementary rights and also for permanent injunction which suit was dismissed in default and then remanded and re-numbered as O.S No.380/1973. In the suit, a decree for permanent injunction was granted restraining the petitioner/defendant from putting up any construction to obstruct the free flow of air and light through the three windows ventilators. The decree was challenged and subsequently this Court, in RSA No.447/1976 affirmed the order of the Trial Court. Thus, the order has attained finality.
6. Learned counsel for the respondents/plaintiffs seeks to rely upon the judgments of a Co-ordinate bench of this Court in B.N.Chandrasekhar Vs. M.Krishnappa1 and Smt.Shakunthala Vs.Smt.Chitra Manjunath Shatar2 to submit that the allowing of the application at the stage of 1 2016(4) KCCR 3736 2 2016(4) KCCR 3739 -6- NC: 2025:KHC:51268 WP No. 4842 of 2021 HC-KAR final arguments would not be just and proper and it would lead to a de novo trial in the said suit.
7. It is not disputed that the suit was filed in the year 2016 and that the written statement was filed by the respondents shortly thereafter. Despite the lapse of time, no application was filed by the petitioner/defendant until the trial was concluded and the matter was at the stage of final arguments. The issue that is now being raised by the petitioner/defendant is whether there is a common wall between the plaintiff and the defendant's house property and whether there is a window of a light towards eastern side of the suit property or not. The Trial Court found that the petitioner/defendant in his cross-examination has admitted the photographs showing the wall as well as the windows. In addition, it was found by the learned Trial Court that the parties have already their led evidence.
8. As stated above, the application was filed at a belated stage. However and more importantly, no issue on this aspect of the matter was framed by the Trial Court. The Court also has to take into consideration the previous -7- NC: 2025:KHC:51268 WP No. 4842 of 2021 HC-KAR proceedings between the parties and the order that was passed by this Court in RSA No.447/1976, confirming the order of the Trial Court. If the petitioner/defendant had any grievance, he was at liberty to take appropriate steps which has not been done by him.
9. In these circumstances, the examination of the Impugned Order does not show any infirmity which would require interference from this Court. The petition is accordingly dismissed. The interim order stands vacated. It is however clarified that the petitioner/defendant is not precluded from taking appropriate remedies, if any available to him, albeit in accordance with law. Digitally signed by TARA VITASTA GANJU Location: High Court of Karnataka
(TARA VITASTA GANJU) JUDGE YN List No.: 1 Sl No.: 37