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2014 DIGILAW 1544 (MAD)

Sundaram Pillai v. Shiek Ghousemian

2014-06-18

R.KARUPPIAH

body2014
Judgment : 1. The revision petitioners, who are the plaintiffs in the original suit filed this revision petition against the order and decretal order passed in I.A.No.294 of 2006 in O.S.No.88 of 2002, dated 06.11.2008 on the file of the Additional Subordinate Court, Virdhachalam. 2. Heard the learned counsel appearing for the petitioners and the respondent and perused the materials available on records. 3. The revision petitioners have filed the original suit in O.S.No.88 of 2002 for declaration and other reliefs against the respondent herein. During the pendency of the suit, after closing the revision petitioners' side evidence, the respondent herein, who is the first defendant in the original suit, filed a petition in I.A.No.249 of 2006 under Order 26, Rule 10 of Civil Procedure Code to appoint an Advocate Commissioner to record the evidence of the respondent herein in his house. In the affidavit filed by the respondent herein, it is stated that he was 56 years old and he underwent bypass surgery. Due to the Doctor's fault, again the surgery was done and the respondent herein was bedridden and also due to old age, he unable to come to the Court to give evidence and therefore, prayed to examine the respondent herein in his house. 4. A counter filed on behalf of the petitioners herein, it is denied the surgery as alleged in the petition and the respondent herein was heal and healthy and he was doing his business by attending the office. Further, the respondent herein went to Sub Registrar Office and registered several documents and he has also attended the Court several times and given evidence. Therefore, it is false to state that he is unable to attend the Court to give evidence and hence, prayed for dismissal of the petition. 5. The trial Court has considered the both sides submissions and finally held that the revision petitioners herein have not cross examined the respondent herein for several occasions. The trial Court further held that in the mean time bypass surgery was done to the respondent herein and therefore, the above said petition filed to appoint the Advocate Commissioner to record the evidence is to be allowed and accordingly, the trial Court has appointed Mr. Thirunavukarasu as Advocate Commissioner and fees for the Commissioner was fixed as Rs.2,500/- and also directed him to file a report with deposition. Thirunavukarasu as Advocate Commissioner and fees for the Commissioner was fixed as Rs.2,500/- and also directed him to file a report with deposition. Aggrieved over the above said order passed by the trial Court, the revision petition has been filed by the revision petitioners, who are plaintiffs in the suit. 6. The learned counsel appearing for the revision petitioners mainly contended that the respondent herein has stated in his affidavit as if he underwent bypass surgery two times and also due to old age, he is unable to attend the Court. But, the respondent herein has not produced any document to prove the above said facts. Further, the learned counsel appearing for the revision petitioners submitted that the respondent herein is attening his office and doing his business regularly and also the respondent herein went to the Sub Registrar Office and executed several sale deeds. Further, the respondent herein has attended Court and gave evidence for several cases and therefore, the reasons stated in the affidavit are all false, but the trial Court has not considered the same properly and therefore, prayed to set aside the above said order. 7. The revision petitioners have not disputed the age of the respondent herein, but main contention of the revision petitioners is that the alleged bypass surgery stated in the affidavit is false. The learned counsel appearing for the revision petitioners further submitted that the respondent herein has regularly attended his office and he was doing his business and giving evidence in several cases in attending the Court and also he has executed several sale deeds in the Registrar Office and therefore, objected to allow the petition. Learned counsel for the revision petitioners further pointed out that absolutely there is no documentary evidence to prove the above said bypass surgery and it is the duty of the respondent herein to prove the same. 8. As rightly contended by the learned counsel appearing for the revision petitioners, the respondent herein has not produced any material to prove that he was underwent bypass surgery two times and was bedridden as alleged in the affidavit, except the averment made in the affidavit. Further, in the revision petition, notice to the respondent herein duly served, but he has not chosen to appear before this Court either in person or through counsel. Further, in the revision petition, notice to the respondent herein duly served, but he has not chosen to appear before this Court either in person or through counsel. The respondent has not specifically denied the averments made in the counter filed by the revision petitioners. Further, it is not denied by the respondent herein as he was not doing his business regularly and executed several sale deeds in the registered office and also attended the court proceedings and gave evidence by filing any reply counter. Therefore, the trial Court has not properly considered the contention of the revision petitioners and also not considered the facts that the respondent herein failed to prove the averments made in the affidavit. Therefore, the order passed by the trial Court is perverse and it should be set aside. 9. In the result, the revision petition is allowed and the order passed by the trial Court is set aside and the above said I.A.No.249 of 2006 is dismissed. No costs. Consequently, the connected Miscellaneous Petition is also closed.