M A SHAFIEQ AHMED Vs. M B KHUTHEJABI

JUDGEMENT

(1.) 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.

(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.