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2005 DIGILAW 1286 (MAD)

P. Kaliappa Gounder v. M. Loganathan & Others

2005-08-08

R.BANUMATHI

body2005
Judgment :- ( Civil Revision Petition filed under Section 115 Civil Procedure Code against the order dated 11.04.2003 passed by the Additional District Judge (Fast Track Court No.I), Coimbatore in I.A.No. 152 of 2003 in O.S.No.187 of 2002, as stated therein. ) This Civil Revision Petition is directed against the order dated 11.04.2003 passed by the Additional District Judge (Fast Track Court No.I), Coimbatore in I.A.No. 152 of 2003 in O.S.No.187 of 2002, dismissing the Petition filed under Order XXVI Rules 2,3 and 4-A read with Section 151 C.P.C. to appoint Advocate Commissioner for examination of the First Defendant. The First Defendant is the Revision Petitioner. 2. O.S.No.869 of 2000 (Sub-Court, Coimbatore) O.S.No.187 of 2002 (Fast Track Court I, Coimbatore): The Plaintiff has filed the Suit for Cancellation of Sale Deeds dated 15.07.1997 executed by the First Defendant purporting to be onbehalf of the Plaintiff in favour of Defendants 2 and 3. Case of the Plaintiff is that he is entitled to the Suit Property – Property measuring 0.57 Acres in Thudiyalur Village, Coimbatore North Taluk. He has purchased the Suit Property by the sale Deed dated 30.05.1994. The First Defendant is very closely related to the Plaintiff. The Plaintiff entrusted the work to the First Defendant for forming the lay out in the lands, for which purpose, the Plaintiff had executed a General Power of Attorney on 15.07.1994 in respect of the Suit Property, empowering the First Defendant to divide the land into House Sites and also to get an approval from the Town Planning Authorities. For a long time, the First Defendant did not do any development work nor cause any sale of the Sites. When the Plaintiff contacted the First Defendant, only then the First Defendant informed the Plaintiff that he had caused sale of Site No.23 and the First Defendant assured that he would do the further work soon. Since the First Defendant failed to carry out the further work and also stopped informing or communicating with the Plaintiff, the Plaintiff has cancelled the Power of Attorney by the Cancellation Deed dated 09.07.1997. Infuriated over the same, the First Defendant has created two Sale Deeds in favour of his Son – the Second Defendant and the other in favour of his Daughter-in-law – the Third Defendant. Both the Sale Deeds are fraudulent, collusive creation and not binding upon the Plaintiff. Infuriated over the same, the First Defendant has created two Sale Deeds in favour of his Son – the Second Defendant and the other in favour of his Daughter-in-law – the Third Defendant. Both the Sale Deeds are fraudulent, collusive creation and not binding upon the Plaintiff. Hence, the Plaintiff has filed the Suit for cancellation of the Two Sale Deeds by the First Defendant in favour of Second and Third Defendants. 3. The First Defendant has filed elaborate Written Statement running several pages – about 35 paragraphs. In the Written Statement, the First Defendant has elaborately narrated as to how he has formed the lay out and travelled to Chennai for four times for getting approval for the lay out. According to the First Defendant, he has made tireless efforts physically as well as mentally for forming the lay outs. In the Written Statement, it is alleged that the Plaintiff is liable to reimburse Rs.2,76,951/- to the First Defendant apart from the service charges of Rs.50,000/-. 4. The Trial commenced. Onbehalf of the Plaintiff, Plaintiff’s Witnesses were examined and also cross-examined. When the case was posted for the defence side evidence, I.A.No.152 of 2003 was filed by the First Defendant to appoint an Advocate Commissioner for examining him. According to the First Defendant, he is aged 87 years and is having Heart and breathing ailments and that he had been taking treatment for almost four years. Due to sudden Heart ailment and chronic asthma, he was admitted in V.G.Hospital and that he is undergoing treatment. Under such circumstances, a Commissioner is to be appointed for examining him. The Application was filed under Order 26 Rules 2,3 and 4-A read with Section 151 C.P.C seeking for Appointment of an Advocate Commissioner for examination of the First Defendant. 5. The Application was resisted by the Plaintiff by alleging that the First Defendant is not actually interested in conducting the case, but only the Second Defendant, who is the son of the First Defendant is conducting on his part. The Plaintiff has further alleged that in consideration of the nature of the Suit and the elaborate Written Statement put forth by the parties, the First Defendant ought to have been examined only in the Court. The Plaintiff is the adopted Son of the First Defendant and is fully aware of the health condition of the First Defendant. The Plaintiff has further alleged that in consideration of the nature of the Suit and the elaborate Written Statement put forth by the parties, the First Defendant ought to have been examined only in the Court. The Plaintiff is the adopted Son of the First Defendant and is fully aware of the health condition of the First Defendant. The First Defendant is hale and healthy and in sound condition to give evidence before the Court. The Medical Certificate is only an eye wash and the alleged admission of the First Defendant in V.G.Hospital is an arranged one in order to avoid giving evidence before the Court. It is further alleged that the circumstances are not conducive to record the evidence of the First Defendant by appointing the Advocate Commissioner. 6. Upon consideration of the contentions of both parties, learned Additional District Judge has dismissed the Application finding that in view of the contentious points urged by the parties demeanour of the First Defendant is to be noted while recording his evidence. It was pointed out that during the cross-examination of the Plaintiff’s Witnesses, no suggestion was put forth that the First Defendant is aged and suffering from ailments. Learned District Judge has also pointed out that the Plaintiff’s Witnesses were cross-examined only on the instruction of the First Defendant. The Application was dismissed mainly on the ground that if the First Defendant is not examined in the Court, his demeanour cannot be noted. 7. Aggrieved over the order of dismissal of the Application, the Revision Petitioner has filed this Civil Revision Petition. Assailing the Impugned Order, learned counsel for the Revision Petitioner / First Defendant has submitted that the Court below has not considered that the Appointment of Advocate Commissioner is sought for only because of his age ailment and inability to appear before the Court. It is contended that when the First Defendant has categorically stated about his Heart ailment, the same ought to have been accepted by the Trial Court and the Commissioner ought to have been appointed in view of the age and the ailment. Contending that the presence of the First Defendant is neither necessary nor is able to be present in the Court, learned counsel for the Revision Petitioner has prayed to set aside the Impugned Order and to appoint the Advocate Commissioner for examination of the First Defendant. 8. Contending that the presence of the First Defendant is neither necessary nor is able to be present in the Court, learned counsel for the Revision Petitioner has prayed to set aside the Impugned Order and to appoint the Advocate Commissioner for examination of the First Defendant. 8. Despite opportunities, there was no representation for the Respondents. The contentious points urged by the Respondents before the Court below have been taken into consideration for disposal of this Civil Revision Petition. 9. The main point arising for consideration is whether in the light of the elaborate Written Statement filed by the First Defendant and other circumstances of the case, can the evidence of First Defendant be recorded by the Advocate Commissioner and whether Impugned Order declining to appoint the Advocate Commissioner for recording the evidence of the First Defendant suffers from any jurisdictional error warranting interference. 10. In the Affidavit, the First Defendant is said to be aged 87 years and suffering from Heart ailment and Asthma and is unable to attend the Court to give evidence. Even at the outset, it is to be pointed out that the age of the First Defendant stated in the Affidavit is highly doubtful. In the long cause title of the Plaint, the age of the First Defendant is stated as "68” years. Nowhere in the Written Statement, the age of the First Defendant is denied. No evidence has been shown that he is aged 87 years. The Medical Evidence produced before the lower Court stating that he is suffering from ailment cannot be accepted. The Suit is of the year 2000. The Suit had been filed for declaration that the Sale Deeds executed by the First Defendant in favour of his Son and Daughter-in-law – Defendants 2 and 3 as null and void and not binding upon the Plaintiff. The Defendant has filed the elaborate Written Statement contending that the Suit site had been handed over to him for developing and to form lay out. In the Written Statement, it is alleged that for getting approval of the lay out he had gone to Chennai for four times and spent Rs.64,700/- towards the same. In Paragraph 22 of the Written Statement, it is further alleged that the First Defendant had put up fence and Compound Wall. In the Written Statement, it is alleged that for getting approval of the lay out he had gone to Chennai for four times and spent Rs.64,700/- towards the same. In Paragraph 22 of the Written Statement, it is further alleged that the First Defendant had put up fence and Compound Wall. It is also alleged that in view of the encroachment by the third party, the First Defendant had put up barbed wire fencing around the lay out by spending amount and Advertisement Boards at several places for the publicity of layouts. The First Defendant in Paragraph 23 of the Written Statement has alleged that he had spent much for the lay out works apart from his tireless efforts physically as well as mentally. 11. By consideration of the averments in the Written Statement, it is seen that the First Defendant is alleged to have formed the lay out by contributing much of his physical efforts showing that he is hale and health. The First Defendant was able to travel to Chennai atleast four times. At the time of filing the Application in 2003, the First Defendant is stated to be aged 87 years. At the time while he travel to Chennai, he must have been 80 years. When he was able to travel to Chennai atleast four times at that stage, there may not be any difficulty for him to come to the court for giving evidence. It is relevant to note that the First Defendant is shown to be living in Mettupalayam Road in Thudiyalur, which is within the Corporation limits of Coimbatore. The contention of the First Defendant that he is not physically fit to come to the Court to give evidence does not merit acceptance. 12. The stage in which the Application was filed is also to be noted. The examination of the Plaintiff’s witnesses was completed. When the case was posted for the Defendant’s evidence, the Application was filed seeking for appointment of an Advocate Commissioner to record the evidence of First Defendant. Learned District Judge has stated that during the cross-examination of Plaintiff’s Witnesses, they were not cross-examined on the ailment of the First Defendant. Learned District Judge has expressed the view that the Plaintiff’s witnesses must have been cross-examined only on the instruction of the First Defendant. Learned District Judge has stated that during the cross-examination of Plaintiff’s Witnesses, they were not cross-examined on the ailment of the First Defendant. Learned District Judge has expressed the view that the Plaintiff’s witnesses must have been cross-examined only on the instruction of the First Defendant. While so, the First Defendant was not justified in filing the Application to appoint the Advocate Commissioner to record his evidence. 13. In view of the serious dispute and contentious points raised by the parties, this Court finds no error in the Impugned Order, wherein the learned District Judge has expressed the view that nothing the demeanour is necessary. If the evidence of the First Defendant is recorded by appointment of Advocate Commissioner, the Court would not have the advantage of noting the demeanour of the Witnesses. To know the demeanour of the First Defendant assumes impossible in view of the serious allegations levelled by the Plaintiff that the Second Defendant is only conducting the Suit onbehalf of his Father – the First Defendant. 14. Power to issue commission for recording the evidence is discretionary. The recording of the evidence by the Court has to be normal rule / practice. Examination of Witnesses on commission has to be an exception. This is all the more so to examine the party – the First Defendant by appointing the Advocate Commissioner. If the parties consent for the Appointment of Advocate Commissioner, liberal approach could be adopted; but where the parties do not consent for the appointment of Advocate Commissioner and raise serious dispute for examining the party by appointing Advocate Commissioner, the discretion must be exercised judicially. The mere fact that the First Defendant is aged or suffering by ailment would not by itself be a ground justifying the recording of the evidence by appointing Advocate Commissioner. 15. The mere fact that the First Defendant is suffering from Heart ailment or asthma by itself is not a sufficient ground justifying recording of the evidence by appointing Advocate Commissioner. When sickness is alleged, the gravity of the sickness has to be assessed. At the same time, the importance of having the Witness / party before the Court and the advantages that would follow from examination in the Court should not be altogether lost sight of. When sickness is alleged, the gravity of the sickness has to be assessed. At the same time, the importance of having the Witness / party before the Court and the advantages that would follow from examination in the Court should not be altogether lost sight of. Before ordering issuing of the Commission to examine the Witnesses on the ground that he is sick, the Court has to record the satisfaction as to the existence of the sickness and the inability of the party to come to the Court to depose. The gravity of the Heart ailment and Asthma is not so grave incapacitating the First Defendant to attend the Court. The Written Statement was filed only in the year 2002. The First Defendant is residing in Mettupalayam Main Road, Thudiyalur and it would be so difficult for him to attend the Court. 16. Bonafide doubts arise that the Application was filed (after the Plaintiff’s evidence was closed) to delay the Trial Proceedings. Challenging the order dated 11.04.2003; the Civil Revision Petition has been filed under Section 115 C.P.C. After the C.P.C.Amendment Act 2002, the Revisional Jurisdiction of the High Court is very much curtailed. It is also not made known as to how the Revision against the order passed in Interlocutory Application is maintainable. Be that as it may, the lower Court has rightly declined to appoint Advocate Commissioner to record the evidence of the First Defendant. This Civil Revision Petition has no merits and is bound to fail. 17. For the foregoing reasons stated, the order dated 11.04.2003 of the Additional District Judge (Fast Track Court No.I), Coimbatore in I.A.No. 152 of 2003 in O.S.No.187 of 2002 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs. Consequently, the connected C.M.P.No.6349 of 2003 is closed.