ELFRIDA J SEQUEIRA Vs. SYDNEY MARTIN BRICE DSOUZA

JUDGEMENT

(1.) Petitioner being the plaintiff in O.S.No.20/2013 for a decree of declaration, partition and other reliefs is invoking the writ jurisdiction of this Court for assailing the order dated 05.12.2014 whereby her application filed under Order XXVI Rules 4 (1) (a) (2) (3), 6, 7 & 8 read with Section 151 of CPC, 1908 for recording of her evidence by Court Commissioner has been rejected. After service of notice, the respondent-defendants have entered appearance through their learned counsel who resists the writ petition.

(2.) The learned counsel for the respondent petitioner - plaintiff argues that, regard being had to the advanced age of the petitioner i.e., 78 years; her bad health condition as prima facie demonstrated by the material placed on record before the Court below and the long distance of about 400 kms between her residential place i.e., Bangalore City and suit place i.e., Karkala town, the impugned order rejecting her application breeds lot of injustice and hardship and therefore, the same warrants indulgence of writ court; the Court below proceeded on a wrong assumption that the petitioner-plaintiff can lead her evidence by appointing a Power of Attorney which course, in view of the decision of the Apex Court in the case of JANKI VASHDEO BHOJWANI AND ANOTHER VS. INDUSIND BANK LTD. AND OTHERS (2005) 2 SCC 217, is legally impermissible. He lastly submits that whatever reasonable cost the contesting respondent would incur for travelling to and staying at Bangalore during the course of recording of the evidence, would be reimbursed. So arguing, he seeks allowing of the Writ Petition.

(3.) Per contra, learned counsel appearing for the contesting respondent (defendant No.6), all others having been placed exparte in the Court below, opposes the Writ Petition making submission in justification of the impugned order contending that the recording of the evidence by Commission is not desirable in this case inasmuch as, there is a plurality of defendants who are residents of the jurisdictional area of the trial Court and some of them being abroad; if the Commission is to record evidence of the petitioner at Bengaluru, the defendants and their counsel, all in a troop have to travel from Karkala leaving their local cases/jobs, this would cause enormous hardship apart from huge expenditure. Otherwise also the counsel submits, the Writ Petition does not deserve to be allowed.