Karnataka High Court
Sri Gullu G Talreja @ Prakash G Talreja vs Sri Sanjay Abas Khan on 20 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 10773 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 10773 OF 2023 (GM-CPC)
BETWEEN:
1. SRI. GULLU G. TALREJA
@ PRAKASH G. TALREJA,
S/O. SRI. GELARAJ TALREJA,
AGED ABOUT 70 YEARS,
2. SMT. SARALA P. TALREJA,
W/O. GULLU G. TALREJA
@ PRAKASH G. TALREJA,
AGED ABOUT 66 YEARS,
NO.1 & 2 ARE RESIDING AT
FLAT NO.122 AND 123,
12th FLOOR, TOWER NO.4,
PEBBLE BAY, A-11,
1ST MAIN ROAD,
RMV 2ND STAGE,
Digitally signed by
LAKSHMINARAYAN DOLLARS COLONY,
N BENGALURU - 560 094.
Location: HIGH
COURT OF
KARNATAKA
3. SMT. ASHA UTTAM CHANDANI,
D/O. SRI. GELARAM TALREJA,
AGED ABOUT 74 YEARS,
NO.4, II FLOOR,
KAVERI APARTMENTS,
BETWN 7TH AND 8TH CROSS,
8TH MAIN, MALLESWARAM,
BENGALURU - 560 003.
...PETITIONERS
(BY SRI. M.R. KRISHNAMURTHY, ADVOCATE)
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WP No. 10773 of 2023
AND:
SRI. SANJAY ABAS KHAN,
S/O. LATE SIUDHIQUI ALI KHAN,
AGED ABOUT 82 YEARS,
NO.11, SILVER BEACH,
AB NAIR ROAD, JUHU,
MUMBAI - 400 049.
...RESPONDENT
(BY SRI. PRABHULING K. NAVADAGI, SENIOR COUNSEL FOR
SRI. B.J. VEERENDRA KUMAR, ADVOCATE)
THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING FOR QUASH THE IMPUGNED
ORDER PASSED BY THE LEARNED 1ST ADDL SENIOR CIVIL
JUDGE AND JMFC, AT NELAMANGALA, IN OS NO 337/2017 DATED
02/02/2023 PASSED ON I.A.V PRODUCED AT ANNEXURE-F AND
ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by the petitioners-plaintiffs is directed against the impugned order dated 02.02.2023 passed on I.A.No.5 in O.S.No.337/2017 by the I Additional Senior Civil Judge and JMFC, Nelamangala (for short "the Trial Court"), whereby the said application filed by the respondent-defendant under Order 26 Rule 4 CPC for appointment of a Court Commissioner to record his evidence on commission was allowed by the Trial Court.
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2. Heard learned counsel for the petitioners and learned Senior counsel appearing on behalf of the learned counsel for the respondent and perused the material on record.
3. The material on record discloses that the petitioners-
plaintiffs instituted the aforesaid suit against the respondents-
defendants for declaration, injunction and other reliefs in relation to the suit schedule immovable properties and the said suit is being contested by the respondent-defendant. During the pendency of the suit, the respondent-defendant filed the instant application seeking appointment of a Court Commissioner to examine himself on commission and to adduce evidence on the preliminary issues and additional issues framed by the Trial Court. It was the specific contention of the respondent that he was 82 years old residing at Mumbai and had undergone back surgery and was under treatment and as such, he was not in a position to travel from Mumbai to Bengaluru to be present personally before the Trial Court and give evidence. It was therefore contended that the respondent-
defendant be permitted to examine himself on commission.
4. The said application was opposed by the petitioners-
plaintiffs, who contended that the respondent-defendant had not -4- NC: 2023:KHC:21276 WP No. 10773 of 2023 made out valid or sufficient ground to seek to examine himself on commission and accordingly, the application was liable to be dismissed.
5. After hearing both sides, the Trial Court took into account the provisions contained in Order 26 Rule 4 CPC coupled with the material on record including the medical certificates etc., and the submission of the respondent-defendant that he was ready to bear the expenses to be incurred for the purpose of examining himself on commission and proceeded to pass the impugned order allowing I.A.No.5 by holding as under:
"ORDER ON IA NO. V UNDER ORDER 26 RULE 4 R/W. SEC.151 OF CPC The defendant has filed this IA No.V under order 26 rule 4 of CPC to appoint commissioner and permit defendant to lead evidence on preliminary issues and additional issues.
2. he has sworn to an affidavit, wherein he has stated that the plaintiffs have filed this suit for relief of declaration and mandatory injunction. Further he has submitted that this court has framed 9 issues on 23.07.2020 and has ordered to treat issue NO. 1 to 4 as preliminary issues and accordingly posted case for enquiry.-5-
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3. Further he has submitted that he is residing at Mumbai and he is aged about 852 years and also due to pandemic and old age he has risk of contracting covid and also he has submitted that he has undergone back surgery and for that reason he submits that he may be permitted to lead evidence through court commissioner and accordingly submits to allow IA No.V.
4. On other hand GPA holder of plaintiffs has filed objection denying the affidavit averments as false and has submitted that the defendant is a well known personality in film industry and also he is a business man having huge properties in and around Bangalore. Further he has submitted that due to business and to look after properties the defendant used to visit Bangalore and for that reason it is not difficult for defendant to travel between Bangalore and Mumbai by air and for that reason submits to dismiss IA No.V.
5. Perused available materials on record, the points that arise for my consideration are;
1. Whether the defendant has made out grounds to record evidence through court commissioner under order 26 Rule 4 of CPC?
2.What order?
6. Heard both side, I have answered Point No.1 In the Affirmative.
REASONS
7. Point No.1: The Plaintiff has filed this suit for relief of declaration and mandatory injunction and the -6- NC: 2023:KHC:21276 WP No. 10773 of 2023 same is contested by defendant by filing written statement and accordingly issues have been framed issues and additional issues have been framed and this court by vide order dated 2.07.2020 has ordered that issue No. 1 to 4 shall be treated as preliminary issues and the burden to prove issue No. 1 to 4 in cast on defendant and now the defendant has filed IA No.V to record evidence3 for enquiry on preliminary issues by appointing court commissioner.
8. Further the defendant in support of IA No.V has filed medical certificate dated 01.12.2022 issues by Doctor Ramesh K Agarwal which goes to show that the applicant is aged about 82 years and he is undergoing treatment from 20 years and also he is a survivor of 62% burn injury and he has a difficulty of wheezing and also he was operated for spine and knee joint by way of surgery and due to said medical condition he is advised to take rest and to avoid traveling that too in crowded places and at this stage it is essential to extract order 26 Rule 4 to CPC which is as follows:
"4. Persons for whose examination commission may issue- (1) Any court may in any suit issue a commission (for the examination on interrogatories or otherwise of)
(a) any person resident beyond the local limits of its jurisdiction;-7-
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(b) any person who is about to leave such limits before the date on which he is required to be examined in court; and
(c) (any person in the service of the Government) who cannot, in the opinion of the court, attend without detriment to the public service:
(Provided that where, under rule 19 of Order XVI, a person cannot be ordered to attend a court in person, a commission shall be issued for his examination is his evidence is considered necessary in the interests of justice.
Provided further that a commission for examination of such person and interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do) (2) Such commission may be issued to any court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person resides, or to any pleader or other person whom the court issuing the commission may appoint.
(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate court".
and by reading order 26 Rule 4(1) (a) the same clarifies that court may issue commission in his suit for -8- NC: 2023:KHC:21276 WP No. 10773 of 2023 examination on interrogatories or otherwise which means court can examine such person to examine on commission by interrogatories or by recording evidence if such person is not resident of local limits of its jurisdiction and in the case on hand as per the cause title of plaint defendant is resident of Mumbai, though he may be owning properties in Bangalore, but as per medical certificate it is clear that he is not in a state to appear before this court and apart from that learned counsel for defendant has submitted that he is ready to deposit cost of traveling, lodging and toher expenses of both of court commissioner and advocate for plaintiff. Further the learned counsel has submitted that the traveling expenses includes only by traveling through air and for that reason no hardship or prejudice would be cause to the plaintiff and for that reason IA No.V deserves to be allowed and accordingly I have answered Point No.1 in the Affirmative.
9. Point No.2: In view of my findings on Point No. 1, I proceed to pass the following:
ORDER The IA No.V under order 26 Rule 4 of C.P.C filed by the defendant is hereby allowed.
The Parties shall suggest name of court commissioner.
The parties shall furnish estimate of cost including commission fee and other -9- NC: 2023:KHC:21276 WP No. 10773 of 2023 expenses so as to direct defendant to deposit same before court.
No order as to cost."
6. A perusal of the impugned order will indicate that the same does not suffer from any illegality nor can the same be said to have occasioned failure of justice warranting interference of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the case of Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal - AIR 2021 SC 3443 and Mohammed Ali Vs. Jaya - (2022) 10 SCC 477.
7. Learned Senior counsel for the respondent and learned counsel for the petitioners jointly submit that instead of directing evidence of the respondent-defendant to be recorded on commission as per the impugned order, in view of the Rules for Video Conferencing for Courts, 2020, the evidence of the respondent-defendant may be directed to be recorded in terms of the said Rules. The joint submission made by both sides is placed on record.
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8. In view of the aforesaid facts and circumstances and submissions made at the Bar, I deem it just and appropriate to modify the impugned order and dispose of I.A.No.5 filed by the respondent-defendant and direct recording of evidence of the respondent-defendant in terms of the aforesaid Rules for Video Conferencing for Courts, 2020.
9. In the result, I pass the following:
ORDER
i) The petition is hereby disposed of.
ii) The impugned order dated 02.02.2023 passed in O.S.No.337/2017 by the I Additional Senior Civil Judge and JMFC, Nelamangala is hereby modified.
iii) I.A.No.5 filed by the respondent-defendant stands disposed of by directing the Trial Court to record the evidence of the respondent-defendant in terms of the Rules for Video Conferencing for Courts, 2020, by taking necessary steps in this regard.
iv) Since the suit is of the year 2017, the Trial Court is directed to dispose of the suit as expeditiously as possible and within a period of three months after conclusion of the evidence of the respondent-defendant.
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v) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.
Sd/-
JUDGE SMJ/BMC List No.: 2 Sl No.: 45