ORDER :

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.

4. Learned counsel for the petitioner would contend that the application filed by the plaintiff under Order XXVI Rule 4 of CPC would not be maintainable and under the said provision, the Commissioner for recording the evidence could not have been appointed. He further submits that the petitioner is hale and healthy and he resides by the side of the Court premises and he can very well attend the Court for giving evidence. He has not placed on record proper medical certificate in support of his case. Hence sought for setting aside the order.

5. The suit is one for declaration and mandatory injunction. When the suit is at the stage of recording evidence of the plaintiff, the plaintiff filed I.A.No.5 under Order XXVI Rule 4 of CPC praying to appoint any Advocate as Court Commissioner for recording the evidence of the plaintiff on the ground that he is not in a position to move around as he has suffered injury. The plaintiff, in order to demonstrate his health condition has placed on record the discharge summary of SDM Hospital wherein he was advised to walk with walker support. The trial Court, on perusal of the documents made available has come to the conclusion that the plaintiff is not in a condition to walk independently and appear before the Court to give evidence. The trial Court, on being satisfied with the material placed before it has exercised its discretion and has allowed I.A.No.5 permitting appointment of Commissioner for recording plaintiff’s evidence.

6. The contention of the petitioner/defendant No.1 that the application filed under Order XXVI Rule 4 of CPC is not maintainable and it would not provide for appointment of Court Commissioner to record the evidence of the plaintiff is not acceptable. It is not the case of the petitioner that the Court has no power, but, the Court has power under Order XXVI Rule 4-A of CPC for appointment of Commissioner for recording the evidence of the plaintiff. Non-mentioning or wrong mentioning of the provision would not take away the power of the Court to allow the application for appointment of Court Commissioner, if the power is traceable to any of the provision. No ground is made out by the petitioner to interfere with the impugned order under Article 227 of the Constitution of India.

Accordingly, the writ petition stands rejected.