RASAMMAL Vs. NALLAMMAL

JUDGEMENT

(1.) THE Revision Petition is against the order of the learned Principal District Munsif, Namakkal dated 22.9.1997 in I.A. No. 740 of 1987 In O.S. No. 989 of 1993 refusing to appoint a Commissioner for examining the witness.

(2.) THE case of the petitioner is that one Adhinarayana Chettiyar, an advocate practicing at Salem is the person who wrote the receipt. On account of his old age and illness he is unable to attend the Court. Hence a Commissioner should be appointed for examining the witness. THE counter stated that the said Advocate is not sick and bedridden as alleged. Hence Commissioner need not be appointed.

(3.) ORDER 16 Rule 19 is only an enabling provision which can be used for compelling witness to attend the Court. We are not faced with such a situation in this case. What is stated in this case is that on account of old age, infirmity etc., the Advocate is not in a position to attend the Court. The learned counsel for the respondent cited Sri Ram v. Ashwant Kumar, AIR 1978 J & K 78 wherein it is stated that to grant Commission for the examination of witnesses on Commission the conditions contained in O.26 R.1 and O.26 R.4 are to be satisfied. It is further stated in said case that the undue expense to be incurred by the other side should also be taken note of. In this case, the condition of the witness viz, the old age is not disputed. The stress is that the infirmity and the sickness has not been proved by means of a certificate. In certain cases old age itself can be treated as infirmity. Invariably old persons will suffer from one sickness or other. If aged persons have to be summoned and detained in the court, it will not be in the interest of the party who summoned him for examination as well as in the interest of the witness himself. The Chief examination and the Cross examination will be conducted according to the convenience of the advocates and it also depends upon the work of the Court. There is possibility of examining him partly on one day and making him come again for completing the examination someother day. For cross examining him also this will be the position. So making an old person to attend the Court wait for being examined according to the convenience of the lawyers and Court will be really taxing the old person.