The court upheld the trial Court's discretion to appoint an advocate commissioner for recording evidence when a witness is unable to attend due to medical conditions, emphasizing justice over procedural norms.

ORDER :

By this civil revision petition under Article 227 of the Constitution of India, the petitioner-defendant has prayed for setting aside the order dated 31-12-2024 in I.A.No. 483 of 2024 in O.S.No. 24 of 2019 on the file of the Court of learned IV Additional District Judge, Tirupati (for short, 'the trial Court').

2. Respondent Nos. 1 and 2 herein, who are plaintiffs, filed a suit in O.S.No. 24 of 2019 before the trial Court against the petitioner herein, who is defendant, seeking to declare that they are the absolute owners of plaint schedule property and to direct the petitioner-defendant to vacate plaint schedule property and handover possession of the same and for other reliefs. The petitioner-defendant is contesting the suit by filing a written statement. In the aforesaid proceeding, based on the pleadings, the trial Court framed issues and examined respondent No. 1 herein-plaintiff No. 1 as P.W.1 on 02-09-2024 and the cross-examination of P.W.1 has been deferred. Subsequently, the suit is being adjourned from time to time for cross-examination of P.W.1. While the suit stands thus, respondent Nos. 1 and 2-plaintiff Nos. 1 and 2 filed I.A.No. 483 of 2024 under Order XXVI Rule 4 read with Section 151 of the Code of Civil Procedure (for short, 'C.P.C.') seeking to appoint advocate commissioner for the purpose of recording evidence of P.W.1 in Court premises at Tirupati or at any suitable place as ordered by the trial Court. The petitioner-defendant filed counter affidavit inter alia contending that taking advantage of his medical condition, respondent No. 1 is avoiding his cross-examination in open Court. The trial Court allowed the above said interlocutory application by the order under revision.

3. Heard Sri K.Chetan, learned counsel appearing for the petitioner- defendant, and Sri T.V.Jaggi Reddy, learned counsel appearing for the caveators-respondent Nos. 1 and 2-plaintiff Nos. 1 and 2.

4. The party seeking issue of commission must satisfy the Court that this is such an exceptional case where Court has no other option but to issue a commission considering the special circumstances. The broad principles which must necessarily be kept in mind while exercising discretion in the matter of issuing of commission for the examination of a witness are that the person invoking it must be bone fide in making the application. The reasons why the witness cannot be examined in Court must be carefully considered. Regard must be had to the conduct of the party and that it must be considered whether the examination on commission would result in manifest injustice to any party or is not calculated to permit the evidence being tested fairly or is likely to prove an abuse of process of Court. Justice above all is a paramount consideration and the discretion must be exercised in furtherance of the same in the particular facts and circumstances of an individual case. The test for rejection of the application should be that the application is not a bona fide one.

5. Sri K.Chethan, learned counsel appearing for the petitioner-defendant, contends that if P.W.1 is allowed to be cross-examined by advocate commissioner, the trial Court would be deprived of an opportunity of noticing his demeanour and in support of his contention, learned counsel places reliance on the judgment of High Court of Gujarat in Kumarpal Mankelal Shah Vs. Kheemraj Ganeshmal Balar, [(2011) 2 GLR 1479].

6. One should not lose sight of the provisions of Order XVIII Rule 4 of C.P.C. which is amended in 1999 and effective from 1^st July, 2002, where it says that the commissioner may record remarks as it thinks material respecting the demeanour of any witness while under examination provided that any objection raised during the recording of evidence before the commissioner, it may be recorded by him and it may be decided by the Court at the stage of arguments. Similarly, provision of Order XVIII Rule 19 is also relevant in this case which has been amended in 1999 effective from 1