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2003 DIGILAW 681 (MAD)

V. Kumar v. Saroja

2003-04-17

P.THANGAVEL

body2003
Judgment : 1. This civil revision petition has been filed by the fourth defendant as revision petitioner against the order and decretal order dated 16.12.2002 and made in I.A. No.300 of 2002 in O.S. No.162 of 1996 on the file of the Subordinate Judge Court, Srivilliputhur. 2. The respondents 1 to 5 as plaintiffs filed the suit against the revision petition, who is the fourth defendant and the respondents 6 to 9, who are defendants 1 to 3 and 5 for partition and separate possession, for damages and for permanent injunction. The revision petitioner wants to examine one Shanmugavel Chettiar, who is the paternal uncle of the revision petitioner as a witness on his side. He could not be brought to Court for examination as a witness as he was aged about 68 years and could not walk due to sickness and anaemic condition. It is under the said circumstances, the revision petition sought for a direction of the trial Court to appoint an advocate commissioner to go and examine the said Shanmugavel Chettiar at his residence and to submit his report along with evidence given by him before Court for consideration. 3. The said petition was resisted by the sixth respondent herein/first defendant that the said Shanmugavel Chettiar, who is a drunkard, is able to walk and come to Court to give evidence, that if he is not able to stand in the witness box to give evidence, he may be permitted to sit to give evidence and that therefore, advocate-Commissioner need not be appointed for the purpose required in the petition. Hence he sought for dismissal of the petition. 4. After considering the submission made on both sides in the light of the evidence produced before Court, the trial Court has come to a conclusion that there is no merit in the petition and accordingly dismissed the petition. Aggrieved at the order and decretal order dated 16.12.2002 and made in I.A. No.300 of 2002 in O.S. No.162 of 1996 on the file of the Court of Subordinate Judge, Srivilliputhur, the petitioner/ fourth defendant as revision petitioner has come forward with this civil revision petition. 5. Aggrieved at the order and decretal order dated 16.12.2002 and made in I.A. No.300 of 2002 in O.S. No.162 of 1996 on the file of the Court of Subordinate Judge, Srivilliputhur, the petitioner/ fourth defendant as revision petitioner has come forward with this civil revision petition. 5. A perusal of the copy of the medical certificate produced before this Court would disclose that the witness Shanmugavel Chettiar, whom the revision petitioner wants to examine as a witness, was aged about 68 years on 10.6.2002 and he was not able to walk due to weakness and anaemic condition. The said certificate was issued by a registered medical practitioner as seen from the copy produced before this Court. A perusal of Explanation to Rule 1, O.26 of Civil Procedure Code would disclose that the Court may accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness. It will otherwise mean that the Court can act on the medical certificate issued by a registered medical practitioner. In the light of the said medical certificate, it cannot be said that there is no proof for sage of the said witness Shanmugavel Chettiar. The said certificate would also disclose that the is incapable to walk due to weakness and anaemic condition. Therefore, there may not be any difficulty for the lower Court in appointing an advocate- Commissioner to record the evidence of the said witness at the exclusive cost of the revision petitioner/ fourth defendant. In view of the said position, the order passed by the trial Court cannot be sustained and accordingly set aside. 6. The trial Court is hereby directed to appointed an advocate commissioner to examine the said witness Shanmugavel on commission with adequate notice to both parties for being ready to participate in the examination and for cross-examination of the said witness. This Court also directs the trial Court to fix a common place agreeable to both parties or a public place like temple or chatram, etc., for examination of the said witness after giving notice to all the parties about the venue, date and time of examining the witness by the advocate commissioner. The civil revision petition is ordered accordingly. No order as to costs. The civil revision petition is ordered accordingly. No order as to costs. In view of the disposal of the main civil revision petition, the petition in C.M.P. No.2288 of 2003 is closed as unnecessary.