Andhra HC (Pre-Telangana)
Poola Lakshmi Narayanamma, W/O. P. ... vs Gaddam Venkata Subbaiah, S/O. G. ... on 27 July, 2005
Equivalent citations: 2005(5)ALD508, 2005(5)ALT755
ORDER P.S. Narayana, J.
1. The Civil Revision Petition is filed against the order, dated 21.6.2005 made in I.A. No. 777 of 2005 in O.S. No. 17 of 2004 on the file of I Additional District Judge, Cuddapah. The said application was filed by the revision petitioner for appointment of Commissioner to record her evidence in Cuddapah Town. The learned Judge recorded certain reasons and observed that it is necessary for the Court to observe the demeanour of the witness, and further recoded that the medical certificate issued by the doctor does not speak about diabetics but speaks that the petitioner was suffering from bacillary dysentery and low blood pressure. The learned Judge also observed about the direction given by this Court to decide the matter within 6 months on 25.10.1994.
2. Heard Sri S.Laxmi Narayana Reddy, counsel representing the revision petitioner and Sri G.V. Raghava Reddy, counsel representing the respondents.
3. The learned counsel for the revision petitioner-plaintiff would submit that in the light of the contents of the affidavit filed in support of the application, it is clear that the petitioner is an old and sickly woman and in the facts and circumstances, the learned judge erred in dismissing the application observing that there is discrepancy in the medical certificate produced and also on the ground of demeanour. The learned counsel placed reliance on certain decisions.
4. On the contrary, the learned counsel for the respondents had taken this Court through the contents of the affidavit filed in support of the application and also counter filed in the application before the learned Judge and would contend that unless satisfactory material is produced and a finding is recorded in relation thereto, the application of this nature cannot be allowed and hence, the learned Judge is well justified in dismissing the application. The learned counsel had also drawn the attention of this Court to the direction, which had been given in C.M.A. No. 3409 of 2004 and would contend that despite the direction, the revision petitioner-plaintiff has been successfully procrastinating the litigation. The learned counsel also placed reliance on certain decisions.
5. O.S.No.17 of 2004 was filed on the file of I Additional District Judge, Cuddapah praying for cancellation of two sale deeds, dated 13.7.2004 obtained by the defendants and the affidavit in relation to the chief- examination was filed on 29.12.2004 and the matter was posted for her cross- examination on 16.6.2005. Mr. Poola Bhaskara Murali, son of the petitioner filed affidavit on behalf of his mother in I.A.No.777 of 2005 stating that since February, 2004, his mother has been falling sick due to high blood pressure and severe diabetics and she has been getting treatment both in Cuddapah as well as in Tirupathi staying at his brother's house and for the last four days, his mother has been suffering from vomiting and dysentery and is being treated by the doctor. It was also stated that his mother attended the Court along with his wife and when his mother was in the Court, she got severe son-stroke and began to omit and hence they could not meet their advocate as he was eng! aged in some other Court and hence, his wife left the Court by noon and brought his mother also to his house. His mother has been treated by their family doctor and confined to bed and unable to attend the Court, and the doctor advised that she must take her treatment and bed rest at least for one month. It was also stated that if an Advocate Commissioner is appointed to record her evidence at the house, no prejudice would be caused. The same was denied in the counter taking the stand that the petitioner is hale and healthy and has been attending the Court. It was further stated that the evidence of the petitioner is important to decide the suit and during the cross-examination of the petitioner it would be essential to observe her demeanour since she alleged fraud against the respondents, and the Advocate Commissioner cannot observe the demeanour of the witness and the other allegations also had been denied. The said application, no doubt, was dismissed by the learned Judge. Hence, this C.R.P. had been filed.
6. There cannot be any doubt whatsoever that the appointment of Commissioner to examine a witness is a discretionary order, however, the discretion has to be exercised judiciously after taking into consideration all the facts and circumstances. It had been recorded in the impugned order that the plaintiff is aged 55 years. She is shown to be of 85 years and no doubt there is some controversy relating to her age, however, it may be 80 or 85 years, and in the medical certificate she was shown to be aged about 90 years suffering from bacillary dysentery and low blood pressure, and it was stated that she has been under treatment for the last four days, and the doctor advised her to take bed rest and treatment for a month i.e. from 15.6.2005 onwards. The affidavit in support of the application was filed by the son of the petitioner.
7. In Vinayak Trading Co., Raichoor v. Sham Sunder & Co., Adilabad, this Court observed that a reading of Rule-2 of Order 26 of C.P.C. would amplify that the discretion of the Court is wide enough to order issue of commission on its own motion or on an affidavit or otherwise. Therefore, an affidavit of a party or a witness is not mandatory nor a condition precedent. What is required of is the apprisement of the facts and circumstances under which the party is inviting the Court to exercise its discretion. The exercise of discretion is not arbitrary. Reliance was placed on the decision reported in Jagannatha v. Sarathambal, AIR 1923 Madras 321 wherein the learned Judge of the Madras High Court held to the following effect:
"Some useful guidance may be gained from a comparison of the language of Order 26, Rule 4, C.P.C. with that of Rule 1. In Rule 1, the word "may" must mean "is given authority to". I am not prepared to accept the respondent's suggestion that the word "may" is explained by, and refers to, no more than the alternative method prescribed of proceeding either by "interrogatories or otherwise". I think that Rule 1 clearly means that in the case of persons who, owing to illness, etc., are unable to attend the Court, the Court cannot refuse to issue a commission. If that is not the meaning of the rule, then it is useless. And if the word "may" implies so much in rule 1, it is reasonable to conclude that in Rule 4, where the same phrase is used, it has the same meaning: that is the Court must, when moved issue a commission.
My view therefore is that the law directs the Court to issue a commission in a case like the present unless it is satisfied, for reasons to be stated that the request for the commission is an abuse of its process and that the lower Court has therefore acted contrary to law. In a case where the lower Court has not obeyed the law, I think it is clearly the duty of this Court to interfere even interlocutory proceedings, rather than permit a trial to go on an illegal course, which must entail unnecessary expenses to the parties and useless waste of time."
Reliance was also placed on another decision reported in Filmistan (Pvt.) Ltd., Bombay v. Bhagwandas, wherein the Apex Court observed thus:
"Admittedly, the witnesses sought to be examined at Kabul are relevant witnesses. All of them are living outside the jurisdiction of the Court and hence they are not amenable to the process of the Court. It was said on behalf of the appellant that one of the witnesses sought to be examined is an agent of the 1st defendant and therefore that the defendant could have produced him in Court for examination. As regards the other witnesses, it was said that the facts that they were expected to depose could have been established by other evidence. We have no doubt that these facts must have been considered by the learned trail Judge. The order under appeal is essentially a discretionary order. We do not think that a case is made out for interfering with the discretion of the learned trial Judge. The fact that the witnesses examined on commission cannot be effectively cross-examined or their examination will entail heavy costs are not sufficient circumstances to interfere wit! h the discretion of the learned trial Judge."
8. The learned counsel for the respondents placed strong reliance on a decision reported in Adhir Chandra Banerjee v. Lailabati Mukherjee, wherein the learned Judge in relation to application for examination of a witness on commission in a title suit and the application made on the ground of illness and old age, supported by medical certificate, held that the Court has to record its satisfaction as to the existence of sickness/infirmity and that because of sickness witness is unable to come to Court and an order passed without recording such satisfaction is illegal and hence, the Court directed to hear application afresh.
9. The learned counsel also placed reliance on another decision reported in Korra Bheema Naik and another v. Smt. Devakatasham Gideon, wherein it was observed that the demeanour of witnesses may have to be observed by the Court and it would not be desirable for the Commissioner to observe the demeanour.
10. It is no doubt true that when the witnesses are able to attend the Court, normally, they may have to be examined before the Court and during cross- examination, it would be advantageous for the Court to observe the demeanour of the witnesses. It is also true that the learned Judge can also record the evidence while observing the demeanour of the witnesses. However, when it is brought to the notice of the Court that a party, due to old age and sickness is unable to attend the Court, the learned Judge recording reasons on the ground of demeanour and some discrepancy in the medical certificate, in the considered opinion of this Court cannot be justified. Despite the discrepancy of the age, definitely the age of the petitioner would be in between 80 to 90 years.
11. In the light of the medical certificate produced and also taking the age of the old lady into consideration and also keeping in view the direction which had been issued by this Court to dispose of the matter early, the trial Court could have exercised the discretion to appoint a Commissioner forthwith to further proceed with this witness and complete the evidence so as to further proceed with the suit, instead, the application was dismissed. The resultant effect appears to be that the matter is being further delayed.
12. In view of the facts and circumstances especially taking the old age of the revision petitioner into consideration and also the medical certificate, the impugned order cannot be sustained since the discretion was not exercised judiciously and in proper perspective and accordingly, the impugned order is hereby set aside. It is needless to say that in view of the direction already issued for early disposal of the suit, the learned Judge is directed to appoint a Commissioner forthwith to complete the examination of the revision petitioner and to further proceed with the matter as expeditiously as possible. It is brought to the notice of this Court that recording of the evidence on commission at the house of the petitioner's son may not be just and proper in view of the fact that the sons of the petitioner occupy certain official positions. In view of the same, it would be just to direct the Commissioner to record her evidence at any other appropriate place which the learned Judge may deem fit and proper in the facts and circumstances of the case.
13. The Civil Revision Petition is accordingly allowed. No order as to costs.