SHAMBANNA RACHAPPA KOLLAVAR Vs. CHAND-RAPPA HANUMANTAPPA YATTINAMANI

JUDGEMENT

(1.) The petitioner is before this Court under Article 227 of the Constitution of India assailing the order dated 02.01.2020 on I.A.No.V in O.S.No.127/2018 on the file of the III Additional Civil Judge and JMFC, Dharwad.

(2.) Petitioner is the first defendant and respondent No.1 is the plaintiff in O.S.No.127/2018 filed for mandatory injunction and for declaration. When the suit was posted for plaintiff s evidence, plaintiff/respondent No.1 herein filed I.A.No.V under Order XXVI, Rule 4 read with Section 151 of CPC praying for appointment of Commissioner for recording the evidence of plaintiff. In the affidavit, accompanying the application it is stated that the plaintiff is not in a position to walk and travel from one place to another due to injury from fall. The doctor has advised him not to walk or stand. The said application was opposed by the petitioner/defendant stating that the plaintiff is in a position to attend the Court and it is not that he cannot walk or stand. Further, defendant No.1 stated that the plaintiff is hale and healthy and he himself carries on his day to day activities. Thus, prays for dismissal of the application. The trial Court, under the impugned order allowed I.A.No.5 for appointment of Commissioner for recording the evidence of the plaintiff. Aggrieved by the same, the petitioner/defendant No.1 is before this Court in this writ petition.

(3.) Heard the learned counsel for the petitioner and perused the material on record.