HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Civil Revision Petition No.4444 of 2013 Between: D.Chakraiah And Smt.D.Manemma and others Dated 16th October, 2014 …Petitioner …Respondents Counsel for the petitioner: Sri V.Krishna Murthy for Sri S.Sharath Kumar Counsel for the respondents: Sri G.Rama Krishna for Sri V.Srihari The Court made the following:
ORDER:
This revision petition is filed by the plaintiff in O.S.No.143 of 2008 on the file of the learned Additional Junior Civil Judge, Cyberabad, Kukatpally at Miyapur against the order, dated 30.07.2013, in I.A.No.612 of 2013, in the said suit.
The above-mentioned suit has been filed by the petitioner for specific performance of agreement of sale. Initially, the suit was filed against respondent Nos.2 to 4. Respondent No.1, who is no other than the petitioner’s mother, got herself impleaded in the suit on the plea that she has paid the money under the suit agreement and that therefore, she is entitled for registration of the sale deed in her favour.
Respondent No.1 has filed I.A.No.612 of 2013 under Order XXVI Rule 3 r/w Section 151 CPC for appointment of an Advocate Commissioner to record her evidence. The petitioner filed a counter affidavit, wherein he has inter alia alleged that his brother has successfully dragged on the suit and been fighting a proxy war by throwing their mother into litigation. He has denied the plea that respondent No.1 is 90 years old and stated that as per the evidence affidavit given by her in the present suit, she has deposed that she is aged about 82 years. The petitioner has undertaken that he will arrange necessary transportation facility to respondent No.1 and that he will not take any adjournment on that day for her cross-examination.
The lower Court by its order, dated 30.07.2013, allowed the said application and appointed an Advocate Commissioner for recording the evidence of respondent No.1.
At the outset, this Court needs to observe that the lower Court has religiously extracted the averments in the counter affidavit filed by the petitioner, but it has failed to deal with the same. The lower Court has taken all the pleadings of respondent No.1 on their face value and observed that being an old lady suffering from different physical ailments in the interests of justice and “principles of natural justice”, it would be appropriate to appoint an Advocate Commissioner to record the evidence of respondent No.1.
In my opinion, the lower Court has not considered the objections of the petitioner in right perspective. Here is a case where respondent No.1 has come on record on her own volition. If her physical condition was not permitting to give evidence in the Court, evidently she would not have even ventured to implead herself in the suit.
As rightly pointed out by the learned counsel for the petitioner, the Court shall not appoint an Advocate Commissioner for recording evidence as a matter of course even after amendment brought out to Order XVIII by way of Act 22 of 2002 w.e.f., 01.07.2002.
The main plea of the petitioner is that as respondent No.1 is allegedly set up her another son, who is the brother of the petitioner, her demeanour needs to be observed by the Court while giving evidence and that such an opportunity will not be available if her evidence is recorded by an Advocate Commissioner. In the light of the undertaking given by the petitioner that he will provide private transportation to respondent No.1 and ensure that she is safely produced before the Court for giving evidence, the lower Court ought not to have appointed the Advocate Commissioner.
For the above-mentioned reasons, the impugned order of the lower Court is set aside and I.A.No.612 of 2013 is dismissed.
It is stated that the case is adjourned to 06.11.2014. The learned counsel for the petitioner submitted that his client will arrange a car for transportation of respondent No.1, that she will be safely taken to the Court hall and dropped back at her residence after recording of her evidence.
Accordingly, the petitioner is directed to do the needful as undertaken by his counsel with regard to the transportation of respondent No.1. The lower Court shall record the evidence on that day without adjourning the case. The petitioner shall complete the cross examination on 06.11.2014 itself.
Subject to the above directions, the civil revision petition is allowed.
As a sequel to disposal of the civil revision petition, C.R.P.M.P.No.6060 of 2013 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 16th October, 2014
VGB