Rasammal vs Nallammal

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.

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.

On consideration of the facts, the trial Court dismissed the petition on the ground that no medical certificate was produced to show the infirmity,

illness etc.

The learned counsel for the petitioner contends that the old age of the said advocate Adhinarayana Chettiyar can be taken judicial notice of and

it has not been done. The learned counsel for the respondent however contends that eventhough it is stated that the advocate is bedridden on

account of sickness no medical certificate is produced.

In the affidavit there is a specific allegation that on account of old age and sickness the said advocate is not in a position to attend the Court.

Eventhough the respondent has denied the statement that the said advocate is not sick and bedridden, there is no denial about the old age of the

said advocate.

The learned counsel for the respondent relied upon Order 16 Rule 19 C.P.C. and contended that as Salem is not beyond 100 or less than 500

kilometres from Namakkal where the Court is situated, hence witness can be summoned.

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.

It should also be taken note of that not only the Court and the lawyers are responsible to find out the truth witnesses also contribute to it. The

mere payment of batta alone cannot be sufficient remuneration for the troubles which an old person has to undergo in a court of law. In such

circumstances a witness who is also helpful is rendering judgment should be not treated very lightly. That is why in my view old age must also be

treated as an infirmity and whenever the Commission is asked for examining an old person the Court must readily order it. The other decision cited

by the learned counsel for the petitioner is Octovious Steel and Co. Ltd. Vs. The Endogram Tea Co. Ltd., . That is also a case relating to Order

26, Rule 1. In this case what is stated is that a medical certificate, unsupported by a doctor''s affidavit is admissible in every case. But the Court

cannot act upon it unless it contains the details about the condition of the patient. As I have indicated above, when a person of old age is sought to

be examined as a witness a liberal view should be taken. The Court need not go into the question whether he is really suffering from any tangible

sickness bedridden etc. Therefore both the cases cited by the learned counsel are not applicable to the facts of the present case.

The learned counsel for the respondent contended that the document sought to be produced through witness is not very relevant. It was not also

mentioned in the plaint. In the statement of facts, the learned Judge himself has stated that the certificate was sent for expert examination and it was

returned as the thumb impression was not legible. The document was produced as a material piece of evidence, in 1993 itself and as there was a

dispute by the other side with reference to the signature it was sent to the expert for examination. That itself indicates the relevance of the

document. Hence it cannot be said that the document is not at all a necessary piece of evidence.

The learned counsel for the respondent further contended that the application came to be filed at the belated stage when the case was

adjourned for arguments. It is seen that after examination of witnesses the case was posted for arguments. At that stage the petition has been filed

for examination of another witness. So immediately after the examination of witnesses, the petition has been filed. Hence it cannot be said that the

petition for examination of witness by Commission was belated.

For the forthcoming reason I am of the view that the order of the District Munsif cannot be sustained. Hence his order is set aside. This C.R.P.

is allowed. The trial Court is directed to issue a Commission for examination of the witness within a period of four weeks from today with a

direction to the Commission to complete the examination of witnesses within a period of another four weeks. There will be no order as to costs.