THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE N.AUTHINATHAN Original Side Appeal No.148 of 2014 Prayer:- Appeal filed under Order XXXVII Rule 9 of the Original Side Rules against the order and decretal order passed in A.No.1406 of 2014 in T.O.S.No.4 of 2006 dated 02.04.2014 by a learned Single Judge of this Court.
For Appellant : Mr.P.B.Ramanujam For Respondents : No representation - - - - -
J U D G M E N T
(Judgment of the Court was delivered by S.Nagamuthu,J.)
The appellant is the plaintiff in T.O.S. No.4 of 2006 before the learned Single Judge of this Court. The trial is in progress. While so, the petitioner filed Application No.1406 of 2014 praying for appointment of an Advocate Commissioner to record the evidence of the appellant herein on the ground that the appellant was then aged about 84 years and unable to move to the Court. The said petition has been dismissed by the learned Single Judge. Challenging the same, the appellant is before this Court with this appeal.
2. We have heard the learned counsel for the appellant and there is no representation for the respondents, though their names have been printed in the cause list and the private notice sent to them have been served.
3. It is seen from the records that in the year 2014, the appellant was aged about 84 years and now he is aged 87 years, quite obviously it would be difficult for him to come to the Court and stand in the witness box and give evidence. It is also seen from the records that none of the respondents have any objection in the appointment of Advocate Commissioner to record the evidence of the plaintiff. Thus, in our considered view, the learned Single Judge ought to have allowed the application for appointment of the Advocate Commissioner. But the learned Single Judge has expressed the view that the appellant is trying to avoid coming to the Court. In our considered view, going by the old age of the appellant, it cannot be said that he is wantonly avoiding to come to the Court. When there is no counter filed by any of the respondents, there is no likelihood of any prejudice, it would have been in the fitness of things to allow the application for appointment of Advocate Commissioner. In such view of the matter, we are inclined to set aside the impugned order.
4. In view of the above, this appeal is allowed and the order dated 02.04.2014 is set aside and the Application No.1406 of 2014 in T.O.S.No.4 of 20106 is allowed and Mr.R.Mohandass, Advocate (Former Registrar (Judicial) of Madurai Bench of Madras High Court) (Cell No.9443366150) is hereby appointed as the Advocate Commissioner for the purpose of recording the evidence of the appellant herein who is the plaintiff in T.O.S. No.4 of 2006. The Advocate Commissioner shall submit the deposition before the learned Single Judge.
5. The learned counsel for the appellant would submit that a sum of Rs.40,000/- may be fixed as remuneration for the Advocate Commissioner. In view of the above, we direct the appellant to pay a sum of Rs.40,000/- (Rupees forty thousand only) as remuneration to the Advocate Commissioner directly. The Advocate Commissioner shall receive necessary documents by filing necessary memo before the learned Single Judge and record the evidence of the appellant in accordance with law after affording sufficient opportunity to all the parties concerned and submit the same to the learned Single Judge. No costs.
Index : Yes kk (S.N.J.) (N.A.N.J.) 03.02.2017
S.NAGAMUTHU,J.
& N.AUTHINATHAN,J.
kk
O.S.A.No.148 of 2014
03.02.2017 http://www.judis.nic.in