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2013 DIGILAW 1260 (KAR)

M. A. Shafieq Ahmed v. M. B. Khuthejabi

2013-11-05

S.N.SATHYANARAYANA

body2013
ORDER Defendant Nos. 10 and 16 in OS. No. 97/2009 on the file of Civil Judge (Jr. Dn.), Somwarpet, have come up in this writ petition impugning the order dated 3-9-2013 in rejecting IA. No. 5 filed under Order 26, Rule 1 r/w Section 151 of CPC. Since the petition is only with reference to right of defendant Nos. 10 and 16 to file fresh application under same provision or to seek reconsideration of the same application, question of issuing notice to other respondents does not arise. 2. The facts on record would disclose that petitioners herein are respectively husband and wife and they are defendant Nos. 10 and 16 in OS. No. 97/2009 filed for the relief of partition and separate possession to plaintiffs 1 to 7 in suit schedule properties. In said suit, petitioners herein have filed application in IA. 5 under Order 26, Rule 1, CPC seeking commission to lead their evidence in their residence before Court Commissioner, which is accompanied by the affidavit sworn to by their son. The said application is dismissed only for the reason that affidavit is not sworn to by applicants themselves personally. However, while dismissing said application, the Court below reserved liberty to applicants to file fresh application along with the affidavit to be sworn by parties i.e., defendant Nos. 10 and 16. What is in challenge in this writ petition is, whether such second application is necessary or the Court below could have decided the same based on the facts filed by the son of defendant Nos. 10 and 16 in support of the application. 3. Heard the Counsel for petitioners. Perused the order impugned. On going through the same, it is seen that the Court below has culled out relevant Rule, which govern the manner in which an application could be filed. As per Rule 18(2) of the Karnataka Civil Rules of Practice, 1967, any application other than the application for temporary injunction could be filed along with memorandum of facts, which could be signed by the counsel appearing for the parties. In the instant case, the application is one for appointment of Commissioner for recording the evidence of defendant Nos. 10 and 16. Therefore, as rightly observed by the Court below the application need not be accompanied by affidavit sworn to by the parties. In the instant case, the application is one for appointment of Commissioner for recording the evidence of defendant Nos. 10 and 16. Therefore, as rightly observed by the Court below the application need not be accompanied by affidavit sworn to by the parties. Even their counsel could have filed the memorandum of facts to substantiate the prayer for appointment of Commissioner. Under that circumstance, the application is by defendant Nos. 10 and 16, who are petitioners herein stating that defendant No.10 has undergone Angiogram and he is confined to bed and defendant No. 16, who is aged about 63 is suffering from severe blood pressure, therefore, she is not in a position to move about and for these reasons their son sworn to the affidavit on behalf of his parents seeking appointment of Commissioner. 4. It is seen that said affidavit is sworn to before the competent officer of the Court at Somwarpet. Obviously if defendants 10 and 16 could have come to the Court to execute the affidavit to be filed with application, they could as well tender evidence in the Court. The mere fact that they are not in a position to come before the Court, hence their son has sworn to affidavit and filed the application seeking permission for appointment of Commissioner does not stand to reason. 5. However, on going through the order impugned it is seen that rejection of application merely on the ground that it is not signed by applicants does not stand to reason and therefore, the impugned order dated 3-9-2013 is required to be set aside and the Court below is directed to decide the said application on its merits without seeking a separate affidavit to be filed by defendant Nos. 10 and 16 in support of said application. Accordingly, with the aforesaid observations the writ petition is allowed without notice to other respondents. Petition allowed.