N.PRATIBHA Vs. RAKESH

JUDGEMENT

(1.) This petition is directed against the impugned common order on I.A.Nos.25 and 26 dtd. 25/10/2023 in O.S.No.588/2018 on the file of the III Additional Senior Civil Judge and CJM, Mysuru [for short, 'the trial Court'] whereby, the said applications filed by the petitioner - defendant No.5 for permission to record her evidence prior to commencement of the evidence of the other defendants and for permission to record her evidence on commission by a Commissioner appointed by the Court, were rejected by the trial Court.

(2.) The material on record discloses that the respondent No.1 - plaintiff is none other than the brother of the petitioner - defendant No.5. The respondent Nos.2, 4 and 5 - defendant Nos. 2, 3 and 4 are the brothers and sister of the petitioner and the respondent No.1, while the respondent No.3 - defendant No.1 is their father. The said suit has been filed by the respondent No.1 - plaintiff for partition of his alleged share in the suit schedule properties and for other reliefs. The said suit is being contested by the petitioner - defendant No.5 along with the defendant Nos.1, 2 and 4, all of whom have filed a common written statement. The respondent No.2 - defendant No.3 [Smt. Lalithamma] has filed a separate written statement and she is also contesting the suit.

(3.) The respondent No.1 - plaintiff examined himself as PW.1 and was cross examined by the defendants. At the stage of evidence of the defendants, the petitioner - defendant No.5 has filed the instant applications inter alia contending that on account of her ill- health, bonafide reasons, unavoidable circumstances and sufficient cause, it is necessary to examine herself immediately before the other defendants adduce their evidence. It is also contended that the petitioner - defendant No.5 is bedridden and not in a position to move out, much less, physically appear before the trial Court and adduce her evidence warranting recording her evidence on commission. The said applications having been opposed by the respondent No.1/party-in-person, the trial Court proceeded to pass the impugned order, rejecting the applications, aggrieved by which, the petitioner is before this Court by way of the present petition.