HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH FRIDAY THIS THE SEVENTH DAY OF NOVEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO CIVIL REVISION PETITION No.1796 of 2014 Between: Geddam Raju . PETITIONER/DEFENDANT And Gotikala Mary Kamala and 4 others . RESPONDENTS/PLAINTIFFS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO CIVIL REVISION PETITION No.1796 of 2014
ORDER:
This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 24.07.2013 passed in I.A.No.1578/2012 in O.S.No.303/2007 on the file of the Court of the Additional Senior Civil Judge, Eluru.
Heard the learned counsel appearing for the petitioner/defendant and the learned counsel appearing for the respondents/plaintiffs.
The respondents/plaintiffs instituted the suit for recovery of possession and damages against the defendant. In the course of the trial, the petitioner/defendant filed an application under Order 26 Rule 9 CPC to appoint an Advocate Commissioner to examine one Samudrala Venkata Durga Rao, the scribe of Ex.B2 agreement of sale, as a witness on his behalf. The respondents/plaintiffs opposed the said petition contending that the alleged witness Samudrala Venkata Durga Rao is hale and healthy person and has been regularly attending the Registrar’s Office and the petition was filed only to protract the trial of the suit.
The learned trial Court adverting to the submissions made by both sides, dismissed the petition on the ground that no material has been placed on record to show that the witness was unwell and was not in a position to attend the Court. Feeling aggrieved, the defendant filed the present revision petition.
The learned counsel appearing for the petitioner/defendant submits that merely because no medical certificate was produced in proof of ill-health of the witness, the learned trial Court should not have dismissed the commission petition; by issuing commission, no prejudice would be caused to any of the parties and therefore, the order impugned is liable to be set aside in the present revision.
On the other hand, the learned counsel appearing for the respondents/plaintiffs would submit that the trial Court on being satisfied with the fact that the petition was unnecessarily filed and as no evidence in proof of ill-health of the witness was filed, the trial Court rightly dismissed the petition and the order passed by the trial Court requires no interference.
Though the Court has power to appoint a commission to examine a witness, the same cannot be issued as a matter of course. If the Court is of the opinion that the commission is absolutely unnecessary and such a request was made only to drag on the proceedings, it can dismiss the petition.
[1]
I n D.C.Chengachari vs. D.P.Chengachari learned single Judge of this Court took the view that when no sufficient material is produced showing the ill-health of a witness, the appointment of commission would be erroneous.
[2]
I n T.Srinivasa Rao v. T.Venkata Rangaiah learned single Judge of this court took the view that commission cannot be appointed to cross examine a witness who is hale and healthy, especially when the question of relevance and admissibility of documents is involved.
In the instant case also the petitioner/defendant was unable to convince the trial Court by adducing enough material to show that the witness was not in a position to attend the Court. The learned trial Court rightly dismissed the commission petition, which order does not warrant any interference in this revision.
The Civil Revision Petition is accordingly dismissed. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed in consequence.
R.KANTHA RAO,J Date: 07.11.2014 Dsr
[1] 1999 (5) ALT 384
[2] 2006 (5) ALT 683