IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY FIRST DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3578 of 2011 Between: Sripuram Gopal Reddy & another .. Petitioners AND Belle Gokari & 5 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3578 of 2011 ORDER: Heard Sri K. Sreenivas, learned counsel for the revision petitioners and Sri M. Damodar Reddy, learned counsel for respondents 1 to 4 and respondents 5 and 6 are stated to be not necessary parties. 2. The matter is heard and being disposed of at the stage of admission on merits. 3. The plaintiffs filed I.A.No.155 of 2011 in O.S.No.112 of 2008, on the file of the Junior Civil Judge’s Court, Kalwakurthy, requesting for appointment of an Advocate Commissioner to record the evidence of the second plaintiff on commission, as the second plaintiff, at present residing at Hyderabad, is unable to walk or move out of the house due to not only sickness due to old age but also due to the specific disease Lumboscictic Syndrome. The request was opposed by the respondents 1 to 4 contending that the petition is to avoid appearance before the Court and that the second plaintiff, a retired teacher, is hale and healthy moving around the surrounding villages and towns freely and joyfully. The respondents 1 to 4 also referred to the denial of opportunity to elicit the truth physically before it for the Court, if they not examining the second plaintiff before the Court and, therefore, desired the request to be negatived. 4. The trial Court passed the impugned order opining that the distance from the residence of the second plaintiff to the Court is not such as would entitle him to have an Advocate Commissioner appointed for the purpose of examining him as a matter of right. As it was the plaintiffs that dragged the defendants to Court, they cannot claim to be examined on commission as a matter of right, more so, in the absence of any medical certificate to probablise the sickness or infirmity. Consequently, the trial Court dismissed the petition. 5. The plaintiffs, while challenging the said order in this revision on the ground of non-consideration of the old age and sickness of the second plaintiff, had enclosed a copy of the certificate issued by a Junior Medical Officer of Sample Survey-cum-Assessment Unit (Leprosy), Nallakunta, Hyderabad, about the second plaintiff, aged 63 years, suffering from Lumboscictic Syndrome and being advised bed rest. 6. The point for consideration is whether it is in the interests of justice to concede the request of the plaintiffs for examination of the second plaintiff on commission. 7. Under Order XXVI Rule 4 of the Code of Civil Procedure, 1908 (for short, “C.P.C”), a commission for examination of any person residing beyond the local limits of the jurisdiction of the Court concerned can be issued, while a person residing beyond the local limits of the Court’s ordinary original jurisdiction cannot be compelled to attend in person to give evidence by virtue of Order XVI Rule 19 C.P.C. If the Court considers it necessary in the interests of justice, a commission shall be issued for recording the evidence of a person who cannot be summoned to attend the Court in person by virtue of Order XVI Rule 19 C.P.C. The second plaintiff is stated to be residing in Hyderabad beyond the local limits of the jurisdiction of the trial Court. Therefore, there is no reason as to why he cannot take advantage of the enabling provisions of Order XXVI Rule 4 read with Order XVI Rule 19 C.P.C. That apart, under Order XVIII Rule 4 C.P.C as amended by the Central Act 22 of 2002, recording of the cross-examination and re-examination of the witness can either be by the Court or by a Commissioner appointed by the Court, while the examination-in-chief of a witness can be by way of an affidavit. Therefore, the advantages which the Court and the opposite party would have, in case of examination of a witness by the Court enumerated in the counter affidavit of respondents 1 to 4 are no longer considered mandatory by the statute. 8. That apart, the second plaintiff was stated to be aged about 58 years and though he is not too old to be normally susceptible to being confined to bed, a specific disease is claimed to have disabled him from moving outside his house. The said disease is said to be leading to his being advised bed rest as per the medical certificate and though it was the plaintiffs that dragged the defendants to Court, appointment of an Advocate Commissioner for examining the second plaintiff can be favourably considered, as the ultimate pursuit of the Court should be to provide every reasonable opportunity to the parties to place their oral and documentary evidence before the Court whichever evidence they desire to so produce. 9. However, as the respondents 1 to 4 will have to now have their counsel present before the Commissioner at the time of examination of the second plaintiff on commission at Hyderabad, they need not be further burdened with the expenses of the same and the plaintiffs who desire to have the luxury of the commission have to bear the cost of the same and also the costs of the learned counsel for respondents 1 to 4 in attending at the time of examination of second plaintiff on commission irrespective of the result of the suit. 10. Therefore, the order in I.A.No.155 of 2011 in O.S.No.112 of 2008, on the file of the Junior Civil Judge’s Court, Kalwakurthy, dated 24.06.2011, is set aside and the said I.A.No.155 of 2011 is allowed without costs. The trial Court shall appoint an Advocate Commissioner for examination of the second plaintiff at his residence at Hyderabad who shall execute his warrant after notice to both parties and both parties shall appear before the said Advocate Commissioner. The trial Court shall fix the appropriate fee payable to the Advocate Commissioner for the purpose and the plaintiffs shall bear the costs of the commission and the costs of the learned counsel for the respondents 1 to 4 in attending during the examination of the second plaintiff on commission for the purpose of cross-examining the witness on behalf of respondents 1 to 4, irrespective of the result of the suit. The Civil Revision Petition is ordered, accordingly, without costs. _____________________ G. BHAVANI PRASAD, J Date: 21st September, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3578 of 2011 Date: 21st September, 2011 KL