IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.50144 OF 2019 (GM-CPC) BETWEEN:
SMT. MARAMMA, W/O YELUMALAI, AGED ABOUT 50 YEARS, RESIDING AT NO.120, SURVEY NO.30, KAVERINAGAR, HOODI, MAHADEVAPURA, BENGALURU-560 048.
(BY SRI. ARJUN.S., ADVOCATE FOR SRI. GIRI KUMAR.S.V., ADVOCATE) AND:
1. SRI. MARAPPA, H/O MANJULA, AGED ABOUT 55 YEARS, RESIDING AT NO.120, SURVEY NO.30, KAVERINAGAR, HOODI, MAHADEVAPURA, BENGALURU-560 048.
2. SMT. MANJULA W/O MARAPPA, AGED ABOUT 40 YEARS, RESIDING AT NO.120, SURVEY NO.30, KAVERINAGAR, HOODI, MAHADEVAPURA, BENGALURU-560 048.
... PETITIONER ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 17.09.2019ON I.A.NO.13 FILED UNDER ORDER XVI RULE 1(2) AND RULE 6 R/W SECTION 151 CPC IN O.S.NO.4003/2014 PASSED BY THE HON’BLE COURT OF THE XL ADDITIONAL CITY CIVIL AND SESSION JUDGE, BENGALURU (ANNEXURE-A) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in an injunctive suit in O.S.No.4003/2014 is invoking the writ jurisdiction of this Court for assailing the order dated 17.09.2019, a copy whereof is at Annexure-A to the Court whereby his application for summoning the Jurisdictional Tahasildhar to come as his witness, has been rejected.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to grant indulgence in the matter because:
a) whether a person is necessary for deposing as a witness in a case, is ordinarily within discretion of the Court below; such discretionary orders can not be challenged in writ jurisdiction as held by the Apex Court in the case of SADHANA LODH VS. NATIONAL INSURANCE COMPANY, AIR 2003 (3) SCC 524, subject to all just exceptions into which arguably the case of the petitioner does not fit; and, b) nothing is demonstrated before this Court as to why the Tahasildhar is to be summoned as a witness; the contention that Tahasildhar is a statutory authority and therefore, he will be in the know of the facts relating to the subject case is a poor ground for summoning him as a witness.
In the above circumstances, this writ petition being devoid of merits is disposed off without interfering with the impugned order.
However, it is open to the petitioner to make appropriate application for summoning of any records from the Office of the jurisdictional Tahasildhar if such records are relevant to the adjudication of lis in the matter; if such application is made, Court below shall consider the same leniently and dispose of the same at the earliest.
All contentions of the parties are kept open.
Sd/- JUDGE DS