Karnataka High Court

Smt. N. Pratibha vs Sri. Rakesh on 4 January, 2024

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                      NC: 2024:KHC:390
                                                 WP No. 25357 of 2023




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 4TH DAY OF JANUARY, 2024

                                   BEFORE
                 THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                   WRIT PETITION NO. 25357 OF 2023 (GM-CPC)
            BETWEEN:

            SMT. N. PRATIBHA
            D/O. D. NANJUNDAIAH,
            AGED ABOUT 51 YEARS,
            R/AT DOOR NO. 178,
            3RD CROSS, KURUBARAGERI,
            IRWIN ROAD, LASHKAR MOHALLA,
            MYSURU-570 001.
                                                   ...PETITIONER
            (BY SRI. K N NITISH, ADVOCATE)

            AND:

Digitally   1.    SRI. RAKESH
signed by         S/O. D. NANJUNDAIAH,
VANDANA S
                  AGED ABOUT 42 YEARS,
Location:
HIGH              R/AT DOOR NO. 1178,
COURT OF          3RD CROSS, KURUBARAGERI,
KARNATAKA         IRWIN ROAD, LASHKAR MOHALLA,
                  MYSURU-570 001.

            2.    SMT. LALITHAMMA
                  D/O. D. NANJUNDAIAH,
                  W/O. SRIKANTEGOWDA,
                  AGED ABOUT 61 YEARS,
                  R/AT DOOR NO. 1178,
                  3RD CROSS, KURUBARAGERI,
                            -2-
                                        NC: 2024:KHC:390
                                    WP No. 25357 of 2023




     IRWIN ROAD, LASHKAR MOHALLA,
     MYSURU-570 001.

3.   SRI. D. NANJUNDAIAH
     S/O. LATE D. DODDAIAH,
     AGED ABOUT 92 YEARS,
     R/AT DOOR NO. 1178,
     3RD CROSS, KURUBARAGERI,
     IRWIN ROAD, LASHKAR MOHALLA,
     MYSURU-570 001.

4.   SRI. MOHAN KUMAR
     M/S. PUSHPAS FUEL STATION,
     S/O. D. NANJUNDAIAH,
     AGED ABOUT 52 YEARS,
     R/AT DOOR NO. 1178,
     3RD CROSS, KURUBARAGERI,
     IRWIN ROAD, LASHKAR MOHALLA,
     MYSURU-570 001.

5.   SRI. M. N. VASANTH KUMAR
     S/O. D. NANJUNDAIAH,
     AGED ABOUT 57 YEARS,
     R/AT DOOR NO. 1178,
     3RD CROSS, KURUBARAGERI,
     IRWIN ROAD, LASHKAR MOHALLA,
     MYSURU-570 001.
                                    ...RESPONDENTS
(BY SRI. RAKESH, PARTY-IN-PERSON)

     THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH/SET
ASIDE THE IMPUGNED ORDER DATED 25/10/2023
PASSED IN IA NO. 25 AND 26 IN OS NO. 588/2018 BY
LEARNED III ADDL. SENIOR CITY CIVIL JUDGE AT
MYSORE AT ANNEXURE-F.

     THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
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                                                  NC: 2024:KHC:390
                                            WP No. 25357 of 2023




                          ORDER

This petition is directed against the impugned

common order on I.A.Nos.25 and 26 dated 25.10.2023 in

O.S.No.588/2018 on the file of the III Additional Senior Civil

Judge and CJM, Mysuru [for short, 'the trial Court']

whereby, the said applications filed by the petitioner -

defendant No.5 for permission to record her evidence prior

to commencement of the evidence of the other defendants

and for permission to record her evidence on commission

by a Commissioner appointed by the Court, were rejected

by the trial Court.

2. The material on record discloses that the

respondent No.1 - plaintiff is none other than the brother of

the petitioner - defendant No.5. The respondent Nos.2, 4

and 5 - defendant Nos. 2, 3 and 4 are the brothers and

sister of the petitioner and the respondent No.1, while the

respondent No.3 - defendant No.1 is their father. The said

suit has been filed by the respondent No.1 - plaintiff for

partition of his alleged share in the suit schedule properties

and for other reliefs. The said suit is being contested by the

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petitioner - defendant No.5 along with the defendant

Nos.1, 2 and 4, all of whom have filed a common written

statement. The respondent No.2 - defendant No.3

[Smt. Lalithamma] has filed a separate written statement

and she is also contesting the suit.

3. The respondent No.1 - plaintiff examined

himself as PW.1 and was cross examined by the

defendants. At the stage of evidence of the defendants, the

petitioner - defendant No.5 has filed the instant

applications inter alia contending that on account of her ill-

health, bonafide reasons, unavoidable circumstances and

sufficient cause, it is necessary to examine herself

immediately before the other defendants adduce their

evidence. It is also contended that the petitioner -

defendant No.5 is bedridden and not in a position to move

out, much less, physically appear before the trial Court and

adduce her evidence warranting recording her evidence on

commission. The said applications having been opposed

by the respondent No.1/party-in-person, the trial Court

proceeded to pass the impugned order, rejecting the

NC: 2024:KHC:390

applications, aggrieved by which, the petitioner is before

this Court by way of the present petition.

4. Learned counsel for the petitioner on

instructions, submits that the petitioner is bedridden and

suffering from various ailments and is not in a position to

attend the Court and physically examine herself and there

is urgency to examine herself on commission on account of

her ill-health and necessary directions in this regard and

orders may be passed by this Court.

5. Per contra, learned counsel for the respondent

No.1 - party-in-person submits that the petitioner as well as

the remaining defendants are unnecessarily protracting the

proceedings and are delaying the matter resulting in not

only huge financial loss to the respondent No.1 but also

have caused irreparable injury and hardship to him. He

however does not dispute that the petitioner is bedridden

and is not in a position to attend the Court and adduce

evidence.

NC: 2024:KHC:390

6. A perusal of the material on record will indicate

that there are several contentious issues and disputed

questions of law and fact that arises between the parties in

the suit. However, the scope of the present writ petition is

restricted/limited to examining the petitioner immediately on

commission having regard to the provisions contained in

Order XVIII Rule 16 of the Code of Civil Procedure, 1908

[for short, 'the CPC'] read with Order XXVI Rule 1, 2 and

4(a) of CPC. As stated supra, there is no dispute between

the parties as regards the ill-health of the petitioner and her

inability to come to the trial Court physically and adduce

evidence in person.

7. Under these circumstances, I deem it just and

appropriate to set aside the impugned order and issue

necessary directions for examining the petitioner as DW.1

on commission at her residence before recording the

evidence of the other defendants and their witnesses. The

grievance urged by the respondent No.1 that the

irreparable injury and hardship is being caused to him on

account of long pendency of the matter is completely

NC: 2024:KHC:390

justified and the same also requires to be addressed by this

Court. Under these circumstances, I deem it just and

appropriate to exercise my powers under Article 227 of the

Constitution of India and issue necessary directions to the

trial Court for expeditious disposal of the suit.

8. In the result, I proceed to pass the following:

ORDER

a The petition is hereby allowed.

b The impugned order dated 25.10.2023 in

O.S.No.588/2018 on the file of the III

Additional Senior Civil Judge and CJM,

Mysuru is hereby set aside.

c Since the matter is set down for hearing before

the trial Court on 06.01.2024, the trial Court is

directed to appoint a Court Commissioner for

the purpose of examining the petitioner -

defendant No.5 on commission at her

residence by fixing the date on 20.01.2024.

NC: 2024:KHC:390

d The evidence of the petitioner shall be

recorded on commission at her residence on

20.01.2024 by a Court Commissioner to be

appointed by the trial Court on the next date of

hearing and a report of the Court

Commissioner shall be submitted to the trial

Court on 05.02.2024 on which date the trial

court shall proceed further in the matter.

e Subsequent to completion of the evidence of

the petitioner, the trial Court is directed to call

upon the remaining defendants and witnesses

to adduce their evidence and the evidence of

all the defendants and their witnesses shall be

completed by 26.04.2024.

f Immediately after reopening of the Courts after

Summer Vacation 2024, the trial Court shall

call upon the respondent No.1 - plaintiff to

adduce rebuttal evidence, if any and thereafter

NC: 2024:KHC:390

proceed further to hear final arguments and