WRIT PETITION NO. 102981 OF 2026 (GM-CPC)

BETWEEN:

1. SRI GOVIND S/O KRISHNARAO DESHPANDE AGE. 85 YEARS, OCC. AGRICULTURE, R/O. DESHAPANDE GALLI, DHARWAD.

…PETITIONER (BY MS. SURABHI KULKARNI, ADVOCATE)

AND:

1. SMT USHA W/O SHRINIVAS DESAI AGE. 76 YEARS, OCC. RETIRED DOCTOR,

R/O. SUDHAMA (HS), SHIVASHRUSTI, FLAT NO.20, MUMBAI.

PRESENTLY RESIDING AT ”TEJASWINI”, 57/D, 18TH MAIN ROAD, BANASHANKARI FIRST STAGE,

BENGALURU 560050.

…RESPONDENT

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF

Digitally signed by VIJAYALAKSHMI M THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF KANKUPPI

Location: H IGH CERTIORARI QUASHING THE ORDER DATED 09.12.2025 ALLOWING IA COURT OF KARNATAKA NO.V IN OS NO.338/2023 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DHARWAD FILED BY THE DEFENDANT U/O.26 RULE 2 AND 4-A R/W SEC.75 AND SEC.151 OF CPC FOR APPOINTMENT OF COURT COMMISSIOENR FOR RECORDING DEFENDANT’S EVIDENCE IN BENGALURU, PRODUCED AT ANNEXURE-A & ETC.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

1. The petitioner has filed this writ petition challenging the order on I.A. No.V dated 09.12.2025 passed in O.S. No.338/2023 by the learned Principal Senior Civil Judge and CJM, Dharwad.

2. Brief facts, leading rise to the filing of this petition are as follows:

The petitioner filed a suit against the respondent for declaration in O.S.No.338/2023. The petitioner led evidence and closed his side. The matter was thereafter posted for the evidence of the respondent. At that stage, the respondent filed an application in I.A. No.V seeking appointment of a Court Commissioner to record her evidence.

3. In support of the application, an affidavit was filed stating that the respondent is aged about 80 years, is suffering from age-related ailments, and has undergone surgery. Hence, she is unable to travel and appear before the Court.

4. The said application was opposed by the petitioner by filing his objections. The Trial Court, after hearing the learned counsel for the parties, allowed the application by order dated 09.12.2025. Aggrieved by the same, the petitioner has filed this writ petition.

5. Heard the arguments of the learned counsel for the petitioner.

6. Learned counsel for the petitioner submits that the respondent is otherwise capable of appearing before the Court and giving evidence, however, she is intentionally avoiding appearance. It is submitted that the Trial Court, without properly considering this aspect, has passed the impugned order. Hence, on these ground, she prays to allow the writ petition.

7. Perused the records, and considered the submissions made by the learned counsel for the parties.

8. The petitioner has filed the suit in 2023, wherein the age of the respondent was shown as 78 years. As of now, the respondent is about 80 years old and is suffering from age-related ailments and has undergone surgery. The respondent has also produced medical records to substantiate that she is unable to travel and attend the Court.

9. The Trial Court, upon considering the medical records as well as the age of the respondent, has rightly allowed the said application, and appointed a Court Commissioner to record her evidence. The impugned order at Annexure-A is just and proper.

10. Therefore, I do not find any error in the impugned order, warranting interference. Accordingly, I proceed to pass the following order:

ORDER

The writ petition is dismissed