K. Sundaram vs K. Nawabjan

R. Balasubramanian, J.—The Revision petitioner in each of the revisions is the respective defendant in O.S. No. 1344/93 and

O.S.No.802/90, both on the file of Principal District Munisif, Dindigul. The respondent is the plaintiff in each of the suit and he is the same. In both

the suits declaration of title is sought for. The plaintiff is a lawyer by profession. Stating that he is sick on account of heart ailment, the plaintiff filed

I.A.No.918/97 in O.S. No. 1344/93 and I.A. No. 915/97 in O.S.No.802/90 under Order 26, Rule 1, C.P.C. for examining him on commission.

Those two applications were ordered. Hence, these two revisions before this court. I heard Mr. M.V. Krishnan, learned counsel appearing for the

petitioner in both the cases and Mr. S.M. Abdul Kadir, learned counsel appearing for the respondent in both the revisions.

Mr. M.V. Krishnan would contend that there is a world of difference between party to a suit being examined on commission and a witness

being examined on commission and this has been stressed by this Court in Zabiya Bibi v. Sivaperumal (1970 I M.L.J. 89) and Rajeevi Ammal v.

M.M. Swamy Naidu ((1986) II M.L.J. 419). According to Mr. M.V. Krishnan, the plaintiff is an active practising lawyer, whereas according to

Mr. Abdul Kadir, he is a non practising lawyer. Especially when the suit is based on title and the plaintiff being a lawyer, it is more essential that his

evidence is recorded before the Court. The fact that he is ill does not appear to completely prevent him from moving around.

Therefore, taking into account the nature of the relief asked for and the position of the plaintiff in the society, I am inclined to pass the following

order: --

The order and decretal order in I.A. No. 918/97 in O.S. No. 1344/93 and I.A.No.915/97 in O.S.No.802/90, both on the file of Principal

District Munsiff , Dindigul are set aside. The revisions are allowed. No costs. However, since heart aliment is put forward as a ground of disability

to climb 3 floors to reach the trial court the learned Principal District Judge, Dindigul is directed to issue suitable directions to the subordinate

judicial officers at Dindigul to permit the examination of the plaintiff alone in the two suits Viz., O.S. No. 1044/93 and O.S.No.802/90 both on the

file of Principal District Munsiff Dindigul in any court situated in the ground floor of that court complex by fixing appropriate time for the

examination and cross examination of the said plaintiff before the Principal District Munsif. Dindigul without any way causing any inconvenience to

the normal and routine work of the Court situated in the ground floor.

Consequently, all the C.M.Ps. are dismissed.