In this writ petition, the petitioner challenged the trial court's order allowing an application for the appointment of a Court Commissioner to record a plaintiff's evidence, citing the plaintiff's alleged inability to walk due to injury. The High Court rejected the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
Dated this the 24th day of January 2020
Before
THE HON’BLE MR.JUSTICE S.G. PANDIT
Writ Petition No.118146 OF 2020 (GM-CPC)
BETWEEN
SRI.SHAMBANNA S/O RACHAPPA KOLLAVAR AGED: ABOUT 66 EYARS, OCC: RETIRED,R/O: JAYANAGAR, 1ST CROSS, SAPTAPUR, DHARWAD-580008. ... PETITIONER
(By Sri : S G KADADAKATTI & SRI.LINGESH V. KATTEMANE, ADVS)
AND
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OCC: DOCTOR, PROFESSOR HOD CHILDREN DIVISION, AIMS HOSPITAL, B.G.NAGAR, BENGALURU-560048.
... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI TO QUASH THE ORDER DATED 02.01.2020 PASSED BY THE III ADDL.CIVIL JUDGE AND JMFC, DHARWAD ON I.A.NO.V IN O.S.NO. 127/2018 VIDE ANNEXURE-E BY ALLOWING THE WRIT PETITION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court under Article 227 of the Constitution of India assailing the order dated 02.01.2020 on I.A.No.V in O.S.No.127/2018 on the file of
the III Additional Civil Judge and JMFC, Dharwad.
is the plaintiff in O.S.No.127/2018 filed for mandatory injunction and for declaration. When the suit was posted for plaintiff’s evidence, plaintiff/respondent No.1 herein filed I.A.No.V under Order XXVI Rule 4 read with Section
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151 of CPC praying for appointment of Commissioner for recording the evidence of plaintiff. In the affidavit, accompanying the application it is stated that the plaintiff is not in a position to walk and travel from one place to another due to injury from fall. The doctor has advised him not to walk or stand. The said application was opposed by the petitioner/defendant stating that the plaintiff is in a position to attend the Court and it is not that he cannot walk or stand. Further, defendant No.1 stated that the plaintiff is hale and healthy and he himself carries on his day to day activities. Thus, prays for dismissal of the application. The trial Court, under the impugned order allowed I.A.No.5 for appointment of Commissioner for recording the evidence of the plaintiff. Aggrieved by the same, the petitioner/defendant No.1 is before this Court in this writ petition.
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perusal of the documents made available has come to the conclusion that the plaintiff is not in a condition to walk independently and appear before the Court to give evidence. The trial Court, on being satisfied with the material placed before it has exercised its discretion and has allowed I.A.No.5 permitting appointment of Commissioner for recording plaintiff’s evidence.
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order under Article 227 of the Constitution of India.
Accordingly, the writ petition stands rejected .
Sd/JUDGE
mpk/-*
1 issue framed by the court
Whether the writ petition assailing the order appointing a Court Commissioner under Order XXI Rule 4 of CPC under Article 227 stands maintainable.
2 provisions across 2 enactments
Sri. Shambanna S/O Rachappa Kollavar
Sri. Chandrappa S/O Hanumantappa Yattinamani
Smt. Girijamma W/O Haleshappa Amaravati
Shivaprasath S/O Siddayya
S.G. Pandit
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
