IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 24578 of 2009(O) -------------------------------------- OS.75/1999 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER(S): ------------------------ 1. NARAYANAN, S/O.MURUKANKUTTY, RESIDING AT PERUVAYIL, AYAKKAD AMSOM, ALATHUR TALUK. 2. VINESH, S/O.NARAYANAN, DO. DO. 3. DAISY, D/O.NARAYANAN, DO. DO. BY ADV. MR.P.R.VENKETESH RESPONDENT(S): ----------------------- 1. SATHIDEVI, S/O.VISWANATHAN, ENGLISH CHURCH ROAD, PALAKKAD MUNICIPALITY, PALAKKAD TALUK. 2. PRASANNA, D/O.SATHIDEVI, DO. DO. 3. VINOD, D/O.SATHIDEVI, DO. DO. R3 BY ADVS.MR.N.SUKUMARAN, MR.BOBBYMATHEW KOOTHATTUKULAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24578/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE IA. NO.2535/09 FILED ON 10.8.09 BEFORE THE SUB COURT, PALAKKAD. P2:- COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN IA. NO.2535/09 ON 12.8.09. P3:- COPY OF THE AFFIDAVIT DTD. 17.8.09 FILED BY THE COUNSEL FOR THE RESPONDENT BEFORE THE SUB COURT, PALAKKAD. P4:- COPY OF THE ORDER DTD. 17.8.09 IN IA. 2535/09 OF THE SUB COURT, PALAKKAD. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.24578 OF 2009 -------------------------- Dated this the 7th day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue a writ in the nature of mandamus or other appropriate writ, order or direction setting aside Ext.P4. ii) Issue a writ in the nature of mandamus or other appropriate writ, order or direction directing the Sub Court, to allow the first petitioner being examined on commission. iii) Issue such other appropriate writ order or direction as this Hon'ble Court may deem fit in the circumstances of the case. 2. Petitioners are the plaintiffs in O.S No.75 of 1999 on the file of the Sub Court, Palakkad. Suit is one for partition, and the respondents are the defendants. The first W.P.(C).No.24578 OF 2009 Page numbers petitioner admittedly aged 78 years moved an application with a medical certificate seeking his examination by appointing an advocate commissioner. That application was resisted by the defendants contending that the medical certificate produced is false and the case canvassed for his examination that he is suffering from illness was devoid of any truth. The defendants also caused production of photographs showing the first petitioner driving a vehicle during the relevant period. The learned Sub Judge after hearing both sides dismissed the application of the first petitioner for his examination through commission, by Ext.P4 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.(C).No.24578 OF 2009 Page numbers 3. I heard the counsel on both sides. Having regard to the submissions made and taking note of the facts and circumstances presented, I find that the age of the petitioner irrespective of the case cavassed by him to seek appointment of commission should have received consideration by the court below. In a suit for partition, to consider the question whether a preliminary decree is to be passed or not, if one or other party seeks examination by commission for recording his evidence, normally in the absence of any other special circumstances to decline the request, it deserves consideration by the court. Of course the court has to take appropriate steps to see no inconvenience is caused to the opposite party when an order is passed allowing the examination of a party by an advocate commission. The court can direct that the examination through commission has W.P.(C).No.24578 OF 2009 Page numbers to be conducted at a particular place fixing the time as well suiting the convenience of the opposite party. I do not find any illegality in Ext.P4 order passed by the court below where the materials tendered by the opposite party disclose that the case canvassed for examination by commission appeared to be not fully correct. All the same, as indicated earlier, the age of the first petitioner should have been taken note of, and it is needless to point out that an old man sometimes may not be able to stand the stress and strain of examination before the open court. True, the court can prevent harassing questions being asked during the examination of the party, still,examination by commission as requested for, in the absence of exceptional circumstances that it cannot be allowed, has to be favourably considered. So much so, setting aside Ext.P5 order, I direct the court below to consider the W.P.(C).No.24578 OF 2009 Page numbers the request of the first petitioner afresh and pass appropriate orders in the light of the observations made above and in accordance with law. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv