IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 WP(C).No. 23044 of 2010(O) --------------------------------------- [I.A. NO.2863/2010 IN OS.NO.125/2008 OF PRLINCIPAL MUNSIFF'S COURT-II,KOZHIKODE] .................... PETITIONERS: --------------------- 1. V.M.SANTHA,W/O. KRISHNAN, 74 YEARS, AJANTHA HOUSE, KASABAM AMSOM, KARIAKUNNU DESOM, KOZHIKODE. 2. V.M.ANITHA, D/O. KRISHNAN, 46 YEARS, AJANTHA HOUSE, KASABAM AMSOM, KARIAKUNNU DESOM, KOZHIKODE. BY ADV. SRI.C.P.MOHAMMED NIAS. RESPONDENTS: ------------------------ 1. K.MOHANDAS, 53 YEARS, S/O. KARINTHIL APPU, KACHERI AMSOM, KOZHIKODE. 2. MANJUNADH BHAT, S/O.LATE VARADARAJ BHAT 36 YEARS, KATCHERI AMSOM AND DESOM. R1 BY ADVS. SRI.K.A.DEVARAJAN, R2 BY ADVS. SRI.V.V.SURENDRAN, SRI.P.A.HARISH, SMT.RESMI NANDANAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23044/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE I.A. NO. 2863/2010 DTD. 12/07/10 IN O.S. NO.125/2008 BEFORE THE PRL. MUNSIFF -II, KOZHIKODE. EXT.P.2: COPY OF THE ORDER DTD. 14/07/2010 IN I.A. NO. 2863/2010 IN O.S. NO.125/2008 BEFORE THE PRINCIPALL MUNSIFF-II, KOZHIKODE. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. THOMAS P.JOSEPH, J. ==================================== W.P(C) No.23044 of 2011 ==================================== Dated this the 26th day of July, 2011 J U D G M E N T Mother and daughter, petitioners herein summoned by the first respondent in a suit filed against the second respondent to be examined as witnesses have come to this Court with this Original Petition seeking assistance of this Court to examine them on commission. Though petitioners filed application for the said purpose in the trial court, that was dismissed by Ext.P2, order stating that there is no good reason for issuing commission for their examination. 2. The issue arose in O.S. No.125 of 2008 of the court of learned Principal Munsiff-II, Kozhikode where petitioners filed I.A. No.2863 of 2010 and that resulted in Ext.P2, order. On failure of petitioners to attend the court learned Munsiff issued warrant of arrest. When this matter came up for hearing this Court issued an order on July 23, 2011 directing that examination of first petitioner will stand adjourned to a day after three weeks from that date. Learned Munsiff was directed to consider whether first petitioner could be examined on commission. Learned counsel for petitioners submitted that the second petitioner is already examined in court as a witness and what remains is only examination of first petitioner. It is submitted that first petitioner's husband died on June 10, 2010, she is W.P(C) No.23044 of 2010 -: 2 :- aged about 75 years and is practically confined to her house at Puthiyara. 3. In Ext.P2, order learned Sub Judge observed that death of first petitioner's husband on June 10, 2010 is not a sufficient reason to allow examination on commission. Order XXVI Rule 1 of the Code of Civil Procedure provides for examination of witnesses on commission, of course in the circumstances stated therein. It is true that first petitioner has not produced any medical certificate showing sickness or physical inability and she is confined to her house. It is pointed out that her house is not far away from the court. But fact remained that first petitioner is a lady aged 75 years who has lost her husband in the old age. One can imagine what would be her condition. In the circumstances learned Sub Judge ought to have allowed the application of petitioners for examination of first petitioner on commission. Original Petition is allowed. Exhibit P2, order is set aside and I.A. No.2863 of 2010 is allowed to the extent it concerned the first petitioner. If first respondent wishes to examine first petitioner as witness, it is open to him to examine her through an Advocate Commissioner to be appointed by the court at the expense of first respondent. Court below is directed to expedite its proceedings in the matter of disposal of the suit. THOMAS P. JOSEPH, JUDGE. vsv