IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 OP(C).No. 280 of 2010(O) ------------------------ AGAINST THE ORDER IN IA 4522/2010 IN OP.32/2006 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER(S): -------------------- CICILY, AGED 65 YEARS W/O.JOSE, PERINGATHARA, CHUTTUPADUKARA EDAPALLY, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.K.S.BABU SMT.N.SUDHA RESPONDENT(S): --------------- 1. KUNJO, AGED 88 YEARS, ATHIPARAMBIL PONNURUNNI, POONITHURA VILLAGE KANAYANNUR TALUK, ERNAKULAM DISTRICT 682 011 2. CALISTUS, AGED ABOUT 58 YEARS ATHIPARAMBIL ,PONNURUNNI, POONITHURA VILLAGE KANAYANNUR TALUK, ERNAKULAM DISTRICT 682 011 3. SEBI, AGED 55 YEARS, ATHIPARAMBIL,RESPONDENTS PONNURUNNI, POONITHURA VILLAGE KANAYANNUR TALUK, ERNAKULAM DISTRICT 682 011 4. JOY, AGED 53 YEARS ATHIPARAMBIL,PONNURUNNI, POONITHURA VILLAGE KANAYANNUR TALUK, ERNAKULAM DISTRICT 682 011 5. POULY, AGED 61 YEARS PONNURUNNI, POONITHURA VILLAGE KANAYANNUR TALUK, ERNAKULAM DISTRICT 682 011 ADV. SRI.K.R.MOHANAN FOR R1 TO R5 SRI.K.M.SANAL FOR R1 TO R5 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.280/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE PHOTOSTAT COPY OF IA NO.4522/2010 IN IOP NO.32/2006 EXT.P2 TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT EXT.P3 TRUE PHOTOSTAT COPY OF THE MEDICAL CERTIFICATE DATED 10.09.2009 ISSUED BY DR.SASIKUMAR, KUMAR INTERNATIONAL CENTRE, THAMMANAM P.O., KOCHI-32. EXT.P4 TRUE PHOTOSTAT COPY OF ORDER DATED 20.09.2010 IN IA NO.4522/2010 IN IOP NO.32/2006 OF THE SUB COURT, ERNAKULAM //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.280 of 2010 -------------------------------------- Dated this the 2nd day of December, 2010. JUDGMENT Petitioner filed a petition as an indigent person to set aside certain documents, partition and other reliefs. It would appear that the petition was dismissed for default on 17.10.2007 and thereafter petitioner filed I.A.No.7072 of 2009 for its restoration and I.A.No.7074 of 2009 to condone the delay in filing that application. To record evidence on the said applications petitioner filed I.A.No.4522 of 2010 to appoint an Advocate Commissioner stating that on account of old age and illness she is unable to attend the court. That application was dismissed by the learned Sub Judge as per Ext.P4, order dated September 20, 2010 observing that there are no grounds to issue a commission as prayed for. Learned counsel for petitioner contends that in the circumstances stated in the affidavit in support of I.A.No.4522 of 2010, application ought to have been allowed. Learned counsel for respondents contends that attempt is to somehow protract the proceedings. 2. Now the question I am concerned with is whether request to appoint an Advocate Commissioner should be allowed or not. Learned Sub Judge dismissed Ext.P3, application observing that there are no grounds to issue a commission. Statement in the affidavit in support of the application does not appear to have been considered properly. Learned Sub Judge also OP(C) No.280/2010 2 observed that no medical certificate is produced in support of the application. In this proceeding petitioner has produced Ext.P3, a photocopy of medical certificate (bearing no date) stating that petitioner had undergone treatment in the year, 2008 and 2009, was reviewed by the Medical Officer referred to therein on 10.09.2009 and her condition remained the same with B/L Knee Osteoarthritis and pain. She was advised to avoid prolonged standing, climbing stairs and squatting. She was advised to wear knee supports and wear micro cellular rubber chappals. 3. Even in the absence of any such situation as referred to in the affidavit in support of I.A.No.4522 of 2010 it is within the power of court under Rule 4 of Order XVIII of the Code of Civil Procedure to appoint an Advocate Commissioner to record evidence of witness. In such a situation when a lady aged about 65 years stated that on account of old age and illness she is unable to attend the court, I do not find reason, normally why the application was rejected assuming that no medical certificate was produced. Now, in this proceeding Ext.P3, photocopy of medical certificate is produced. I am inclined to allow the request of petitioner. Resultantly this petition is allowed. Ext.P4, order is set aside. Learned Sub Judge is directed to appoint an Advocate Commissioner (at the expense of petitioner) to record evidence of petitioner. Learned Sub Judge shall fix the bata OP(C) No.280/2010 3 payable and direct the Advocate Commissioner to expedite his proceedings so that the Original Petition itself can be disposed of as early as possible. THOMAS P.JOSEPH, Judge. cks