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2003 DIGILAW 1265 (AP)

Syed Hashim Hussaini v. Syed Fida-c-Fathima

2003-10-16

P.S.NARAYANA

body2003
( 1 ) HEARD Sri Ashfak Ahmed, the counsel for the revision petitioner and Sri Mirza imamulla Beig, representing respondents 1 to 5 ( 2 ) THE revision petitioner, aggrieved by the order dated 11-07-2003 made in I. A. No 988 of 2003 m O S No 903 of 1998 on the file of V Senior Civil Judge, City Civil Court, hyderabad, had preferred the present Civil revision Petition under Article 227 of the constitution of India ( 3 ) RESPONDENTS 1 to 5 herein filed O S no 903 of 1998 on the file of V Senior Civil judge, City Civil Court, Hyderabad praying for the relief of partition It is stated that the respondent No 1 filed her deposition-cum-affidavit and the matter was posted for cross-examination to be recorded by the Advocate-Commissioner who was appointed by the learned Judge suo motu The Advocate-Commissioner could not record the cross-examination of P W. 1 for the reason that the plaintiff in the suit, respondent No 1 herein objected to come to the court for recording the cross-examination and insisted the advocate-Commissioner to record the cross-examination at her residence It is also stated that the respondent No 1 had dragged the recording of cross-examination within the court premises and filed IA No 988 of 2003 seeking directions to the advocate-Commissioner to record her evidence at her residence It is further stated that the learned judge, without considering the objections taken by the revision petitioner, had passed an order thus "heard Petition allowed" ( 4 ) SRI Ashfak Ahmed, the learned counsel representing the revision petitioner had pointed out that the impugned order is a non-speaking order and at any rate, recording of evidence in a matter of this nature, a suit for partition, on commission should be only in exceptional circumstances The learned counsel also had drawn the attention of this court to Order 18 Rule 5 of the Code of Civil procedure, hereinafter referred to as "the code" The learned counsel also contended that despite Order 18 Rule 5 of the Code and as per the amended provisions of the Code, the courts are appointing Commissioners for recording evidence in a casual way without carefully examining the other provisions of the Code The learned counsel also contended that though a request was made to file a counter in detail objecting to this course, the same was not permitted by the learned Judge ( 5 ) PER contra, Sri Mirza Imamulla Beig, the learned counsel representing the respondents 1 to 5-plaintiffs m the suit, submitted that the first respondent is a paradanasin lady and apart from it, in view of the amended provisions of the Code, absolutely there is no illegality or legal infirmity, in permitting the cross-examination of respondent No 1 by appointing an Advocate-Commissioner The learned counsel also contended that it cannot be said to be contrary to the provisions of order 18 Rule 5 of the Code as contended by the counsel representing the revision petitioner. The learned counsel also would maintain that at any rate, no prejudice is caused to the petitioner if cross-examination is recorded by an Advocate-Commissioner ( 6 ) HEARD both the counsel. The impugned order dated 11-7-2003 in I. A. No. 988 of 2003 in O. S. No. 903 of 1998 on the file of the V senior Civil Judge, City Civil Court, hyderabad, just reads as hereunder:"heard. Petition allowed. " order XVIII Rule 5 of the Code reads as hereunder: "in cases in which an appeal is allowed, the evidence of each witness shall be,- (a) taken down in the language of the court,- (i) in writing by, or in the presence and under the personal direction and superintendence of, the judge, or (ii) from the dictation of the Judge directly on a typewriter; or (b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the court in the presence of the Judge. " ( 7 ) IT is also needless to say that in the light of the amended provisions of the Code, commissioners are being appointed for the purpose of examination of the witnesses and in view of the liberalized provisions relating to the appointment of the Commissioners for recording of evidence, it is stated by the counsel for the respondents 1 to 5-plaintiffs in the suit that no prejudice had been caused. It is also brought to the notice of this court that the prior suo motu order had not been questioned and the same had attained finality. At any rate, when a request was made by the revision petitioner, the learned judge could have permitted the revision petitioner to file a counter and could have recorded the reasons while making the order. In view of the same, the impugned order in i. A. No. 988 of 2003 in O. S. No. 803 of 1998 is hereby set aside and the matter is remitted back to the court below for the purpose of affording opportunity to both the parties, to hear the objections, if any, and pass appropriate orders in the light of the facts and circumstances of the case. ( 8 ) THE Civil Revision Petition is allowed to the extent indicated above. No order as to costs.