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2019 DIGILAW 236 (AP)

Yelavarthy Devendra Prasad v. Avva Pushpa Latha

2019-09-17

M.VENKATA RAMANA

body2019
ORDER : M. VENKATA RAMANA, J. 1. This Civil Revision Petition is directed against orders in I.A. No. 67 of 2018 in O.S. No. 326 of 2004 of the Court of learned II Additional Senior Civil Judge, Vijayawada, dated 08.11.2018. 2. The first plaintiff in the suit is the petitioner. The defendants in the suit filed I.A. No. 67 of 2018 under Order XXVI Rule 4 CPC read with 141 CPC to appoint an advocate commissioner to examine the third defendant Smt. Garikapati Jayalakshmi, W/o. Koteswara Rao and to record her evidence. 3. The suit in O.S. No. 326 of 2004 is filed for relief of declaration that the petitioner is the absolute owner of the plaint schedule property and for permanent injunction restraining the respondents 2 to 6 from in any way interfering with peaceful possession and enjoyment of plaint schedule property. 4. The dispute in the suit is in respect of an extent of Ac. 2.00 comprised by Ac. 1.68 cents in RS No. 69/2 and Ac. 0.32 cents in RS No. 87 in Ambapuram village, Vijayawada Rural (M), Krishna District. The first respondent is represented by his GPA in the suit. 5. In support of the above petition, the GPA of respondents 4 to 14 filed an affidavit in the trial Court stating that examination of Smt. Garikapati Jaya Lakshmi (D3) is absolutely necessary in this case as a witness on their behalf for just decision in as much as the property in dispute originally belonged to her, who executed a GPA in favour of one Sri Alluri Nageswara Rao. It was also stated in the affidavit filed in support of the petition that Smt. Garikapati Jaya Lakshmi, represented by GPA sold the disputed property in favour of defendants No. 15 and 16 from whom, defendants 4 to 14 purchased the same. Stating that Smt. Garikapati Jaya Lakshmi is residing at HMT Nagar, Nacharam, Hyderabad, and is ready to depose in the suit. Since she is unable to attend the Court due to severe knee pain and disk collapse, it is sought to appoint a commissioner as requested. 6. Stating that Smt. Garikapati Jaya Lakshmi is residing at HMT Nagar, Nacharam, Hyderabad, and is ready to depose in the suit. Since she is unable to attend the Court due to severe knee pain and disk collapse, it is sought to appoint a commissioner as requested. 6. On behalf of the petitioner, opposing the above petition a counter was filed in the trial Court mainly contending that Smt. Garikapati Jaya Lakshmi, though has been third defendant in the suit as well as in O.S. No. 185 of 2017, she remained ex parte in both the suits and without specifically stating on whose behalf she has to be examined as a witness, without setting out nature of evidence to be brought out from her, the petition as filed is impermissible. While referring to the deposition of D.W. 1 in the suit and in as much as defendants 4 to 14 could not seek relief for cancellation of sale deed marked Ex. A1 as null and void, it is requested to dismiss this petition. It was also stated in the counter that ill-health attributed to the proposed witness is false. It is further stated that the petition is filed only to protract the matter unnecessarily. 7. Upon considering the rival contentions of the parties as well as the material on record, the learned trial Judge by the impugned order has chosen to accept the request of the respondents and appointed an advocate commissioner to examine and record the deposition of Smt. Garikapati Jaya Lakshmi. 8. In this revision petition, it is strenuously contended for the petitioner that GPA attributed to Smt. Garikapati Jaya Lakshmi is not filed in the suit and any evidence to be brought out from her, in the absence of GPA attributed to her, cannot be looked into, in terms of Section 91 of Evidence Act nor her oral evidence could be a right substitute for the documentary evidence. It is further contended that the proposed witness is not entitled to speak to any of the sale transactions concerned to the suit and that too when she remained ex parte in the suit. While contending that the material on record makes out that she would be a better witness for the petitioner than for the respondents, it is stated that appointing an advocate commissioner to examine her is improper. 9. While contending that the material on record makes out that she would be a better witness for the petitioner than for the respondents, it is stated that appointing an advocate commissioner to examine her is improper. 9. On behalf of the respondents, the order under revision is supported pointing out the imminent necessity to examine this witness to prove their claim. It is also contended that Section 91 of Indian Evidence Act cannot be brought into play while considering the present petition and examining the proposed witness is just and proper on their behalf. Thus mainly supporting the order under revision, it is requested to dismiss the same. 10. Now, the point for determination is: "Whether there are circumstances to appoint a commissioner to examine the proposed witness, viz., Smt. Garikapati Jaya Lakshmi, on commission, and the order under revision, is proper?" 11. The proposed witness is a third defendant not only in O.S. No. 326 of 2004 but also in O.S. No. 185 of 2007. The respondents claimed that their entire case with reference to the plaint schedule property, depends on the testimony of the proposed witness. In such an event, the objections sought to be raised on behalf of the petitioner for her examination seem to be more imaginary than real. Whether the properties concerned to both the suits are different or otherwise, cannot be a question to consider at this stage. Merely because, the proposed witness is a party to both the suits and did not choose to contest them, cannot be a reason to deny the request of the respondents. Nor, it is the stage at which effect of Section 91 of Evidence Act could be considered vis-a-vis. The testimony of the proposed witness. 12. The reason for taking out commission to examine her is stated to be her ill-health, who is not in a position to move on account of arthritis. When evidence of the proposed witness according to the respondents would elucidate the matter relating to dispute further and as the petitioner cannot prevent the other side from examining any of the witnesses, it is more desirable to examine her as a witness when specific medical grounds are stated for her inability to attend the Court as well as to depose. 13. In the above circumstances, rejecting all the contentions on behalf of the petitioner, the order under revision has to be confirmed. 13. In the above circumstances, rejecting all the contentions on behalf of the petitioner, the order under revision has to be confirmed. Nature of testimony to be brought out from Smt. Garikapati Jaya Lakshmi, could as well be subject matter of ultimate consideration in the suit and the petitioner, who is the plaintiff in the suit will have an opportunity to cross-examine her. 14. In the light of the above circumstances, there is justification to appoint a commissioner as sought. Rightly, in this context V. Ramanaidu and another v. Smt. V. Ramadevi 2018 (3) ALT 58 is relied on, by the respondents. In this ruling, it was observed that there cannot be hard and fast rule relating to appointment of commissioner and the facts in the given case should be taken into consideration. In Para 25 of this ruling, it was observed as under: "25................There is no hard and fast rule of in which case commissioner to be appointed and in which it is not, by the Court of its own without even application, but for what are the illustrative matters referred by the Apex Court in Salem Bar Association case II in 2005, it is in complicated factual matters involved Court generally record evidence at least of main witnesses and appoint advocate commissioner to record evidence of other witnesses more particularly from pressure of work and work load with huge pendency in almost all courts." 15. Thus basing on the facts of the case when the witness is found to be important witness to the defendants to rely and to canvass their claim in the suit, appointment of commissioner by the trial Court cannot be found fault with. Sufficient reasons are assigned in the order under revision and they do not call for any interference. 16. In the result, this Civil Revision Petition is dismissed without costs. Consequently, miscellaneous petitions pending if any, in this revision petition, shall stand closed.