DRAKSHAYINI Vs. GANGAWA

JUDGEMENT

(1.) THE petitioner is the plaintiff in O. S. No. 189 of 200. . . on the file of the Principal Civil Judge (Senior Division), Hubli. The respondents are the defendants in the suit. The petitioner had filed an application for appointment of a Court Commissioner to record her evidence on the ground that she is unable to appear before the Court to give her evidence. The application filed by the petitioner was allowed. One Sri c. P. Wali, Advocate was appointed as a Commissioner to record her examination-in-chief also. The respondents Counsel objected for recording of examination-in-chief by the Commissioner. Therefore, the petitioner filed an application requesting the Court to permit the commissioner to record her examination-in-chief. The application was opposed by the respondents and the application is also dismissed. Being aggrieved by the said order, the present petition is filed.

(2.) THE only point to be considered by this Court in this writ petition is whether the Commissioner who has been appointed by the Court to record the evidence of a witness is required to record the examination-in-chief by way of oral evidence or the party has to file an affidavit in lieu of examination-in-chief.

(3.) THE learned Counsel appearing for the petitioner contends that the commissioner was not appointed under Rule 6 of Order 18 of the CPC and that he was appointed under Order 26, Rule 4-A of the CPC. If a commissioner is appointed under Order 26, Rule 4-A of the CPC, evidence has to be recorded as per Rule 19 of Order 18 of the CPC. Therefore, he requests this Court to set aside the order passed by the trial Court.