Karnataka High Court
M.A. Shafieq Ahmed vs Smt. M.B. Khuthejabi on 5 November, 2013
Equivalent citations: AIR 2014 KARNATAKA 1, 2014 (1) AIR KANT HCR 182 (2014) 2 KCCR 62, (2014) 2 KCCR 62
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
WRIT PETITION NO.48969/2013 (GM-CPC)
1. M.A. SHAFIEQ AHMED
AGED ABOUT 65 YEARS
FARMER
S/O LATE M B AHMED
2. SMT .NAZMA SHAFIEQ
AGED ABOUT 59 YEARS
HOUSEWIFE
W/O SHQFIEQ AHMED
BOTH THE PETITIONERS ARE
RESIDENTS OF CHINNALI ROAD,
MANGO ESTATE,
SHANIVARASANTHE TOWN, ... PETITIONERS
(By Sri ABDULLA.T.I, ADV., FOR M/S HEGDE ASSTS.,)
AND
1. SMT. M.B. KHUTHEJABI
AGED ABOUT 89 YEARS
W/O LATE M B JAMAL SAB
MAIN ROAD
SHANIVARASANTHE TOWN - 571 235
2. SMT M.J. SHAKHIRA BANU
AGED ABOUT 64 YEARS
W/O LATE ABDUL SAMAD
-2-
MAIN ROAD
SHANIVARASANTHE TOWN -571 235
3. M .J. NOOR AHMED
AGED 62 YEARS
RETIRED OFFICIAL
SON OF LATE MB JAMAL SAB
RESIDING AT ADI BOOTHAPPA STREET,
VIJAYAPURA EXTENSION,
NEAR VOKKALIGARA KALYANA MANTAPA,
CHIKAMAGALUR TOWN- 577 101.
4. SMT M .J. AKTHARUNNISA
AGED 60 YEARS, HOUSE WIFE
W/O MOHAMED JAN
DODDANERALE VILLAGE,
SANTHEMALA POST,
PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 107.
5. M.J. IQBAL AHMED
AGED 59 YEARS
SON OF LATE M.B. JAMAL SAB,
C/O M.J. NOOR AHMED,
CHIKAMAGALUR TOWN - 577 101.
6. M .J. ISHTHAKAR AHMED
AGED 54 YEARS
SON OF LATE M.B. JAMAL SAB
MAIN ROAD
SHANIVARASANTHE TOWN -571 235
7. SMT M .J. RASHEEDA BANU
AGED 49 YEARS
W/O GAHAZUDDIN
COFFEE PLANTER,
NAGENAHALLI VILLAGE,
BELUR TALUK,
HASSAN DISTRICT - 573 105.
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8. SMT ASHA KHANAM
AGED 89 YEARS, HOUSEWIFE
W/O LATE M.B. GHOUSE
I CROSS, HAYATH MOHALLA
CHANNARAYAPATNA TOWNS
HASSAN DISTRICT - 573 116.
9. SMT .GULSHEER
AGED 59 YEARS
W/O ABDUL JABBAR
KUMAR BEEDI
ARAKALGUD TOWN
HASSAN DISTRICT - 573 102.
10. SRI M .G.MOHAMMED ALI
AGED 57 YEARS
MERCHANT,
S/O LATE M.B. GHOUSE
FOOTWEAR SHOP,
HAYATH MOHALLA,
CHANNARAYAPATNA TOWN,
HASSAN DISTRICT - 573 116.
11.SMT M .G. KHURSHEED
AGED 54 YEARS
W/O SIRAJUDDIN
CONTRACTOR, LASHKAR MOHALLA
HOLENARASIPUR TOWN,
HASSAN DISTRICT - 573 211.
12.SMT M .G. PHOOL JAN @ SABRUNISA
AGED 51 YEARS, HOUSEWIFE
W/O MUNEER AHMED (CANTEEN)
NEAR CHOWDESHWARI TEMPLE
MAHADEVPET
MADIKERI TOWN -571 201.
13.SMT M .G. NOOR
AGED ABOUT 50 YEARS, HOUSE WIFE
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W/O G .BASHA
COFFEE PLANTER,
HONGARAHALLA VILLAGE
KENCHAMMANA HOSAKOTE POST,
SAKLESHPUR TALUK,
HASSAN DISTRICT - 573 129.
14.SMT M.G. GULSHAR @ ANAR
AGED ABOUT 43 YEARS
HOUSE WIFE,
W/O ASLAM PASHA, SALESMAN
BIG MOHALLA,
CHANNARAYANPATNA TOWN
HASSAN DISTRICT -573 116.
15.SMT .MAHABOOBI @ PYAREJAN
AGED 84 YEARS
HOUSE WIFE,
WIFE OF LATE M .B. AHMED
CHINNALLI ROAD,
MANGO ESTATE,
SHANIVARASANTE TOWN -571 235
16.SMT .ROSHAN BEGUM
@ REHAMMATHUNNISA
AGED ABOUT 64 YEARS, HOUSEWIFE
W/O LATE SRI AHAMADULLA ZAFARI
FRUIT MERCHANT,
NAWAITHODI MOHALLA,
HASSAN -573 201.
17.SMT .DILSHAD BEGUM
AGED ABOUT 60 YEARS
HOUSEWIFE,
W/O ABDUL WAHEED
BABU BAKERY, KUMAMRI STREET
TENGELLAMUNI, AYELUR
ANDHRA PRADESH,
ALSO AT: CHINNALI ROAD
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MANGO ESTATE
SHANIVARASANTE TOWN 571 235
18.SMT M A ASHKAR AHMED,
AGED ABOUT 56 YEARS ,
BEEDI WORKERS COLONY,
NEAR BANDE MUTT ASHRAM,
KOMGHATTA ROAD,
KENGERI UPA NAGAR,
BANGALORE - 560060.
19.SMT NISHAD BEGUM,
AGED ABOUT 55 YEARS,
HOUSE WIFE,
W/O MOHAMMED HANEEF,
HOSALINE ROAD,
AMEER MOHALLA,
HASSAN - 573 201.
20.SMT SHAMSHAD BEGUM,
AGED ABOUT 54 YEARS ,
HOUSE WIFE ,
W/O HAMEED,
C/O ADAM SAB VOTARA,
PENSION MOHALLA,
HASSAN - 573 201.
21.SMT IRSHAD BEGUM,
AGED ABOUT 49 YEARS,
MANGO ESTATE,
CHINNALLI ROAD,
SHANIVARASANTE TOWN 571235 .. RESPONDENTS
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED ON I.A. NO.5 IN O.S. NO.97/2009 BY THE
LEARNED CIVIL JUDGE, JUNIOR DIVISION AT SOMWARPET
DATED 3.9.2013 VIDE ANN-E
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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 -7- 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 -8- 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. -9-
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.
Sd/-
JUDGE nd/-