IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.52619 OF 2018 (GM-CPC) & WRIT PETITION NO.53690 OF 2018 (GM-CPC) BETWEEN SRI. H. BALAKRISHNA NAYAK, AGED 66 YEARS, SON OF LATE H. VENKATESH NAYAK, RESIDING AT NO.304, "B" WING, ARCHANA ARCADE, KUNJIBETTU, UDUPI-576 101. … PETITIONER (BY SRI. P.P. HEGDE, ADVOCATE) AND 1. SRI. H. RAMDAS NAYAK, AGED 78 YEARS, SON OF LATE H. VENKATESH NAYAK, RESIDING AT "PRASHANTH", H. NO.13-3-56, COURT ROAD, UDUPI-576 101.
2. SRI. BABURAYA NAYAK, AGED ABOUT 74 YEARS, SON OF LATE H. VENKATESH NAYAK, RESIDING AT 3RD FLOOR, MAHALASA TOWERS, OPP: OLD TALUK OFFICE, COURT ROAD, UDUPI-576 101.
3. SRI. H. PRAKASH NAYAK, AGED ABOUT 55 YEARS, SON OF LATE VENKATESH NAYAK, VICEROY PARK, THAKUR VILLAGE, KHANDIVILLI, MUMBAI-400 101, MAHARASTRA. … RESPONDENTS (BY SRI. PRAKASH HEGDE K, ADVOCATE FOR R1; R2 & R3 ARE SERVED & UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 12.09.2018, ALLOWING I.A.NO.VI FILED UNDER ORDER XXVI RULE 1 ACTING UNDER ORDER XVIII AND 4 OF THE CODE OF CIVIL PROCEDURE PASSED IN O.S.NO.86/2014 BY THE COURT OF ADDL. SENIOR CIVIL JUDGE, UDUPI WHICH IS PRODUCED HEREWITH AS ANNEXURE-F AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a suit for partition and separate possession of the property in question is knocking at the doors of writ court for assailing the order dated 12.9.2018, a copy whereof is at Annexure – F, whereby the Addl. Senior Civil Judge, Udupi having favoured the request of the other side, has permitted the recording of further evidence through Commission.
2. The consistent view of the Apex Court is that the impugned orders of the kind being the product of exercise of discretionary power, regardless of the legal infirmity or factual infection, the writ courts shall not ordinarily conduct deeper examination of the same in the absence of any prejudice being caused thereby to the other side; no such prejudice is demonstrated herein.
3. The petition does not disclose as to what prejudice which law can take cognizance of, is being caused to him, if further cross-examination is conducted through Commission. The contention of the petitioner that this order has been obtained by fraud does not merit a deeper consideration at the hands of this court, in the absence of an error apparent on the face of the record.
In the above circumstances, Writ Petitions stand dismissed.
However liberty is reserved to the petitioner to make impugned order one of the grounds for laying a challenge to the judgment & decree if and when they are entered adverse to his interest, as provided u/s 105 r/w Order XLIII Rule 1A of amended CPC.
The learned trial Judge is requested to try and dispose off the suit as expeditiously as possible keeping in view the other work resting on his shoulders.
No costs.
Sd/- JUDGE cbc