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2009 DIGILAW 275 (MAD)

A. K. Loganathan v. Manonmani & Others

2009-01-23

G.RAJASURIA

body2009
Judgment :- Animadverting upon the order dated 16.09.2008 passed by the learned Additional Subordinate Judge, Salem in I.A.No.382 of 2008 in O.S.No.397 of 2000, this civil revision petition is focussed. 2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents. 3. A summarization and summation of the relevant facts, as stood exposited from the records could succinctly and precisely, pithily and briefly, be set out thus: The respondents/plaintiffs herein filed the suit O.S.No.397 of 2000 seeking the following reliefs: - declaring that the plaintiffs and defendants 2 and 3 are absolutely entitled to the suit property; - directing the first defendant and the fourth defendant to deliver possession of the suit property to the plaintiffs; - directing the first defendant and fourth defendant to pay damages for use and occupation from the suit till date of delivery of possession at the rate to be determined after due enquiry. The trial commenced, in the meanwhile, I.A.No.382 of 2008 was filed seeking appointment of an Advocate Commissioner to examine D1/ the revision petitioner herein at the following address: Vivasaya Uthirayala Mandal Kaigal Village, Theertham Post Chittoor District, Andhra Pradesh After hearing both sides, the lower court dismissed it. Being aggrieved by and dissatisfied with the said order, this revision is focussed on various grounds. 4. The learned counsel for the revision petitioner/first defendant would reiterate the grounds of revision in his argument. 5. Whereas the learned counsel for the respondents/plaintiffs would invite the attention of this Court to the relevant portion of the order of the lower Court and develop her argument that the basic requirement for getting appointed an Advocate Commissioner for examining a witness, is to produce a Medical Certificate relating to the ill health of the witness, so as to highlight on what grounds the witness is prevented from appearing before the Court. But, in this case, such basic requirement is missing. Accordingly, she prays for the dismissal of the revision petition. 6. The learned counsel for the respondents/plaintiffs, at the time of hearing, produced a photocopy of the memo filed by the revision petitioner herein before the lower court to the effect that in connection with the treatment, he visited Salem and he was taking treatment in a hospital and that commission might be issued for examining him in that place. 6. The learned counsel for the respondents/plaintiffs, at the time of hearing, produced a photocopy of the memo filed by the revision petitioner herein before the lower court to the effect that in connection with the treatment, he visited Salem and he was taking treatment in a hospital and that commission might be issued for examining him in that place. According to the learned counsel for the respondents, the said memo also is indicative of the fact that he was not that much immobile and he could have got himself examined as a witness before the Court itself. 7. Taking into consideration the fact that not even a Medical Certificate was filed in order to buttress and fortify his stand that he should be examined on commission, I could see no infirmity in the order of the lower Court and no interference with the order of the lower court is warranted. Accordingly, this revision fails and the same is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.