Arun Jaiswal vs Annapurna

H. Billappa, J.—In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has called in question the order dated 14.11.13 passed by the Principal Senior Civil Judge & CJM, Dharwar, in O.S. No. 2/2010 vide Annexure-H.

By the impugned order Annexure-H, the Trial Court has rejected the application filed by the petitioner under Order 26 read with Section 151 of CPC.

Aggrieved by that, the petitioner has filed this writ petition.

Briefly stated the facts are;

The petitioner has filed suit in O.S. No. 2/2010 for declaration and permanent injunction represented by his Power of Attorney Holder. At the stage of evidence, the petitioner has filed an application under Order 26 read with Section 151 of CPC, praying to appoint a Commissioner to record his evidence. The Trial Court by its order dated 14.11.2013 has rejected the application. Therefore, this writ petition.

The learned Counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that the petitioner is suffering from ill health and he cannot travel long distance and therefore, the Trial Court was not justified in rejecting the application. He also submitted that if the Commissioner is appointed to record the evidence of the petitioner, nobody will be prejudiced and therefore, the impugned order cannot be sustained in law.

I have carefully considered the submission made by the learned Counsel for the petitioner. I do not find any merit in the submission of the learned Counsel for the petitioner. The suit in O.S. 2/2010 has been filed by the petitioner for declaration and permanent injunction represented by his Power of Attorney Holder. The petitioner has filed application for appointment of a Commissioner to record his evidence. The Trial Court has rejected the application on the ground that the plaintiff, i.e. the petitioner, should come before the Court and depose and distance is not the criteria. The Trial Court, in its discretion, assigning valid reasons has rejected the application. Therefore, the impugned order does not call for interference.

Accordingly, the writ petition is rejected. However, in case the petitioner comes before the Court to depose, the Trial Court shall see that he is cross-examined immediately.