IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 WP(C).No. 36042 of 2007(N) ------------------------------------- OS.65/2005 of I ADDL.SUB COURT,ERNAKULAM .............................................. PETITIONER: ------------ LILLY THOMAS, W/O.THOMAS, AGED 68 YEARS, RESIDING AT PADASSERY HOUSE, PACHALAM, KOCHI-12. BY ADV. SRISHIJU VARGHEESE SRI.C.S.YESUDAS RESPONDENTS: ---------------------- LALU.K., S/O.LATE KALIANIKUTTY AMMA, AGED 47 YEARS, GOVERNMENT EMPLOYEE, RESIDING AT LAKSHMI PRIYA, 22/394 OEN ROAD, TRIPUNITHURA. BY ADV. SRI.N.NEELAKANDHAN NAMBOODIRI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 36042/2007 N APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE COMMISSION APPLICATION IA NO. 7033/2007 INOS NO. 65/05 OF THE SUB COURT, ERNAKULAM DT. 31/10/2007. EXT.P2. COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT/PLAINTIFF IN IA NO. 7033/2007 IN OS NO. 65/05, OF THE SUB COURT, ERNAKULAM DT. 1/11/2007. EXT.P3. COPY OF THE ORDER IN IA NO. 7033/2007 IN OS NO. 65/2005 OF THE ADDITIONAL SUSB COURT, ERNAKULAM DT. 2/11/2002. RESPONDENT'S EXHIBITS - NIL. True copy tga M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 36042 OF 2007 = = = = = = = = = = = = = = = Dated this the 15th day of January, 2008. J U D G M E N T This writ petition is filed seeking for a direction to set aside Ext.P3 order and the consequential examination report filed by the Advocate Commissioner and for a direction to the trial court to order examination of the witness in Court. Ext.P1 is an application whereby one Dr.V.P.Satheesan, M.D. (Ayurveda) is requested to be examined by a Commissioner. It is averred in the petition that he is a very busy Doctor and he will be off-duty only on 1st and 3rd Sundays of every month. I am not really very much impressed with the reason given that a Doctor who is a witness cannot be examined before Court. But since much water has flown after the order I feel it may not be proper at this stage to hold otherwise. 2. Examination of this witness is very material in this case because he is the person who had treated the deceased K.C.Augustine whose Will is under challenge on the ground of W.P.C 36042 OF 2007 -:2:- mental capacity etc. After the amendment of Code of Civil Procedure in 2002 Order 18 empowers the Court to examine a witness on Commission unless the Court feels it otherwise. I do not think there is any special circumstance in a case of this nature where the witness is to be examined only in Court. He is not a party witness but is a official witness who is expected to speak about what he has done to the patient which will be evidenced by some documents. Further if there is any peculiar demenour that has to be noted in a cross- examination the Code also provides for noting of the same by the Commissioner and when there are objectionable questions or answers that may also reported to the Court which will take a decision on the same. So the legislature clearly protects the rights of the parties as well as the witness and I do not think this is an extraordinary case where the Court should have directed the witness to be present in Court for examination. Therefore the said order does not suffer from any infirmity. W.P.C 36042 OF 2007 -:3:- 3. Now, the crucial question is what is to be done specially when the chief examination is done by the Commissioner and due to the inconvenience of the counsel appearing for the writ petitioner cross-examination is not done by the witness. As stated by me earlier he is a very material witness and if an opportunity is deprived for cross- examination certainly it will revolt against the right of the person and therefore I am inclined to grant him an opportunity to cross examine the witness but it shall be from his house as done earlier, that too at the expenses of the writ petitioner because it was on his account he was not cross-examined. The Commissioner cannot be blamed for not heeding to the request of the counsel for the defendant for the reason that the Court itself has fixed a date for examination and also posting the very next day for return of the Commissioner's report. Therefore the writ petition is disposed of as follows. (1) The order issuing Commission for examination of the witness is affirmed. W.P.C 36042 OF 2007 -:4:- (2) An opportunity is given to the writ petitioner to request the Court below to give him a date in consultation with the other side and the convenience of the witness for cross examination and the cross-examination can be done in the place where the chief-examination was done previously. Needless to say that the Commission batta has to be paid by the writ petitioner. (3) The Court below therefore shall give an opportunity and if a request comes from the writ petitioner it may be permitted and thereafter the matter be disposed of in accordance with law. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-