JYOTHI RAJAGOPAL Vs. SHANTHA

JUDGEMENT

(1.) Petitioner, a defendant in respondent's suit in O.S.No.6316/2009 for a decree of partition, separate possession and declaration, is invoking the writ jurisdiction of this Court for assailing the order dated 23.10.2017, whereby his application in I.A.No.XIX for recalling the order dated 18.07.2017 posting the case for arguments and another application in I.A.No.XX for recording his evidence by Commission, have been rejected. The respondent having entered appearance through his counsel, resist the Writ Petition.

(2.) Learned counsel for the petitioner argues that the suit is admittedly for a decree of partition, separate possession and declaration of the subject property which is very valuable in the city; petitioner all through the proceeding was present who was an octogenarian, having the hearing problem, could not appear before the court on 18.07.2017 since he was admitted to hospital for medical treatment; on the said date, the impugned order came to be passed posting the matter for argument, very next day, the petitioner having filed the present applications; that being so, the court below could not have made the impugned order to the great prejudice of the petitioner. So arguing, he seeks allowing of the Writ Petition.

(3.) Learned counsel for the opposing party resists the Writ Petition contending that the explanation offered in support of the application for recalling the order whereby the case is posted for arguments is not plausible; once the matter is posted for arguments, ordinarily no interlocutory applications should be permitted to be filed; in any circumstance, the application in I.A.No.XX for recording petitioner's evidence by commission is thoroughly misconceived; so contending, he seeks dismissal of the Writ Petition.