Karnataka High Court
Smt Lalithamma vs Pushpa on 11 March, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.4136 OF 2020 (GM-CPC)
BETWEEN:
SMT. LALITHMMA
W/O BASAVARAJAPPA KEMBAVI
AGED ABOUT 80 YEARS
OCCUPATION: HOUSE WIFE,
R/O SRI. TALKIES ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
...PETITIONER
(BY SRI. HARISH KUMAR M.S., ADVOCATE)
AND:
1. PUSHPA
D/O LATE KEMBAVI HALAPPA
AGED ABOUT 55 YEARS
R/O SRI TALKIES ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
2. SMT. ARUNA
W/O MOHAN KUMAR
AGED ABOUT 50 YEARS
R/O SRI TALKIES ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
2
3. VIJAYA
D/O LATE KEMBAVI HALAPPA
AGED ABOUT 47 YEARS
R/O SRI TALKIES ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
4. SMT. JAYASHRI
W/O KANTH KUMAR
AGED ABOUT 45 YEARS
R/O SRI TALKIES ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
5. SMT. KAVITHA
W/O MURGESH
AGED ABOUT 50 YEARS
R/O SRI TALKIES ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
6. SMT. JYOTHI
W/O PRAKESH BABU
AGED ABOUT 41 YEARS
R/O SRI TALKIES ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
7. SMT. RATHNAMMA
W/O BASAVARAJAPPA RAMANI
AGED ABOUT 72 YEARS
R/O AVARAGOPPA,
POST: KOLSIRSI,
SIDDAPURA TALUK,
UTTARA KANNADA DISTRICT-581 355.
8. SMT. PRAMILAMMA
W/O LATE LOKESHWARAPPA DUMMI,
AGED ABOUT 70 YEARS
3
R/O HARANAHALLI VILLAGE,
SHIVAMOGGA TALUK,
SHIVAMOGGA DISTRICT-577 416.
9. SMT. VANAJAKSHMMA
W/O LATE SIDDARAJU
AGED ABOUT 68 YEARS
R/O GANGA NILAYA
SRI TALKIES ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
10. KEMBAVI BASAVARAJAPPA
S/O LATE CHENNAPPA
AGED ABOUT 90 YEARS,
R/O SRI TALKIES ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
11. SMT. SHOBA
W/O J. LOKESH
AGED ABOUT 53 YEARS
R/O CHURCH ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
12. SMT. POORNIMA
W/O SHIVAKUMAR
AGED ABOUT 39 YEARS
R/O SRI TALKIES ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
13. RAVIKUMAR
S/O LATE NAGARAJA
AGED ABOUT 35 YEARS
R/O MARKET ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
4
14. REKHA
D/O LATE NAGARAJA
AGED ABOUT 32 YEARS
R/O MARKET ROAD,
SAGAR TOWN,
SHIVAMOGGA DISTRICT-577 401.
....RESPONDENTS
(NOTICE TO R1, R3, R5 AND R7 TO R11
SERVED-UNRESPRESTENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-
E, THE ORDER DATED 03RD APRIL, 2019 ON I.A.NO.8 IN
ORIGINAL SUIT NO.6 OF 2014 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., SAGAR; AND
ETC.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the petitioner challenging the order dated 03rd April, 2019 in Original Suit No.6 of 2014 on the file of the Additional Senior Civil Judge and JMFC., Sagara (for short, hereinafter referred to as 'trial Court'), dismissing the application in IA.8.
2. The brief facts for adjudication of this writ petition are that, the plaintiffs have filed suit for partition and separate possession in respect of the suit schedule properties. The 5 defendants entered appearance and filed written statement, contesting the suit on merits. When the matter was set down for evidence of defendants, defendant No.5 has filed an application in IA.8 under Order XXVI Rule 1 of the Civil Procedure Code stating that due to her old age and ill-health, she is not able to give evidence in the Court and as such, she sought for appointment of an advocate as Court Commissioner to record evidence. The said application was resisted by the plaintiffs. The trial Court, by order dated 3rd April, 2019 dismissed the application. Being aggrieved by the same, defendant No.5 has preferred this writ petition.
3. I have heard Sri. Harish Kumar M.S., learned counsel appearing for petitioner, who submits that the petitioner is aged about 80 years and it is not possible to give evidence in the Court and as such, the said application has been filed to record her evidence through Court Commissioner to be appointed by the trial Court. He further contended that the impugned order passed by the trial Court requires interference in this writ petition.
6
4. Having heard the learned counsel appearing for petitioner, it is not in dispute that the suit is filed for partition and separate possession. The finding recorded by the trial Court which is self-explanatory, wherein, the trial Court at Paragraph No.9 of the impugned order has stated that the Medical Certificate dated 26th March, 2019 issued by the Administrative Doctor of Government Hospital, Sagar states that the defendant No.5 is suffering from uncontrolled hypertension with senile degenerative disorder of brain and chronic COPD and she is under treatment for more than two years and she cannot walk, sit and stand for long time. The trial Court after, considering the material on record has observed that the residence of the defendant No.5 is within a distance of one kilometer from the Court, and therefore, declined to interfere with the application. Accordingly, in my considered view, the trial Court is justified in rejecting the application. Accordingly, Writ petition is dismissed, confirming the impugned order passed by the trial Court.
Sd/-
JUDGE ARK