T. Rathinavel vs P.A.T. Sundaravel and Others

M. Venugopal, J.—The Civil Revision Petitioner/plaintiff has filed this civil revision petition as against the order dated 22.12.2008 in I.A.

No. 376 of 2008 in O.S. No. 63 of 2007 passed by the learned Additional District Judge - Fast Track Court No. 2, Madurai, in dismissing the

application filed under Order 26 Rule 1 read with Section 151 of the Code of Civil Procedure, by the revision petitioner/plaintiff praying to

examine him as a witness in the main suit at his residence by means of appointing a Commissioner.

The trial Court while passing orders in I.A. No. 376 of 2008 in O.S. No. 63 of 2007, has among other things, observed that the revision

petitioner/plaintiff can walk with the help of others and moreover, the Court is situated within a kilometre from the residence of the revision

petitioner and this has not been denied and resultantly, dismissed the application without costs.

In the memorandum of grounds, it is averred that the trial Court has misdirected itself with respect to the scope and ambit of Order 26 Rule 1 of

the Code of Civil Procedure, read with explanation and that the Court below has not appreciated that a Doctor may not be called as a witness and

that the lower Court after having accepted the certificate Ex.P.1 ought to have relied on same to hold that the revision petitioner is sick and that the

Court below has placed reliance on the counter of the respondent wrongly without appreciating the certificate Ex.P.1 and hence, the revision

petitioner prays for allowing the civil revision petition in the interest of justice.

On perusal of the order passed by the trial Court, this Court is of the considered view that the trial Court has exercised its discretion in refusing

to allow the application praying for an appointment of a Commissioner to examine the revision petitioner which cannot be interfered with. Further,

in the order passed by the trial Court, at paragraph No. 9, it is clearly mentioned that the Doctor has admitted that the petitioner is able to walk

with the help of others, etc.

The main reason weighed with the lower Court in refusing to accede to the request of the revision petitioner in not appointing a Commissioner is

that the revision petitioner can walk with the help of others and added further, the Court is situated within a kilometre from the residence of the

petitioner which fact has not at all been denied and therefore, looking at any point of view and on an overall assessment of the facts and

circumstances of the case in a cumulative fashion, this Court comes to the inevitable conclusion that there is no merit in the present civil revision

petition and accordingly, the same fails and is hereby dismissed in furtherance of substantial of cause of justice.

In the result, the civil revision petition is dismissed leaving the parties to bear their own costs and the order dated 22.12.2008 in I.A.376 of

2008 in O.S. No. 63 of 2007 by the learned Additional District Court - Fast Track Court No. 2, Madurai, is affirmed. Resultantly, the connected

Miscellaneous Petition is dismissed.