The gravity of the sickness and the inability of the party to come to the court to depose should be assessed before appointing an Advocate Commissioner.

( Civil Revision Petition filed under Section 115 Civil Procedure Code against the order dated 11.04.2003 passed by the Additional District Judge (Fast Track Court No.I), Coimbatore in I.A.No. 152 of 2003 in O.S.No.187 of 2002, as stated therein. )

This Civil Revision Petition is directed against the order dated 11.04.2003 passed by the Additional District Judge (Fast Track Court No.I), Coimbatore in I.A.No. 152 of 2003 in O.S.No.187 of 2002, dismissing the Petition filed under Order XXVI Rules 2,3 and 4-A read with Section 151 C.P.C. to appoint Advocate Commissioner for examination of the First Defendant. The First Defendant is the Revision Petitioner.

2. O.S.No.869 of 2000 (Sub-Court, Coimbatore)

O.S.No.187 of 2002 (Fast Track Court I, Coimbatore):

The Plaintiff has filed the Suit for Cancellation of Sale Deeds dated 15.07.1997 executed by the First Defendant purporting to be onbehalf of the Plaintiff in favour of Defendants 2 and 3. Case of the Plaintiff is that he is entitled to the Suit Property – Property measuring 0.57 Acres in Thudiyalur Village, Coimbatore North Taluk. He has purchased the Suit Property by the sale Deed dated 30.05.1994. The First Defendant is very closely related to the Plaintiff. The Plaintiff entrusted the work to the First Defendant for forming the lay out in the lands, for which purpose, the Plaintiff had executed a General Power of Attorney on 15.07.1994 in respect of the Suit Property, empowering the First Defendant to divide the land into House Sites and also to get an approval from the Town Planning Authorities. For a long time, the First Defendant did not do any development work nor cause any sale of the Sites. When the Plaintiff contacted the First Defendant, only then the First Defendant informed the Plaintiff that he had caused sale of Site No.23 and the First Defendant assured that he would do the further work soon. Since the First Defendant failed to carry out the further work and also stopped informing or communicating with the Plaintiff, the Plaintiff has cancelled the Power of Attorney by the Cancellation Deed dated 09.07.1997. Infuriated over the same, the First Defendant has created two Sale Deeds in favour of his Son – the Second Defendant and the other in favour of his Daughter-in-law – the Third Defendant. Both the Sale Deeds are fraudulent, collusive creation and not binding upon the Plaintiff. Hence, the Plaintiff has filed the Suit for cancellation of the Two Sale Deeds by the First Defendant in favour of Second and Third Defendants.

3. The First Defendant has filed elaborate Written Statement running several pages – about 35 paragraphs. In the Written Statement, the First Defendant has elaborately narrated as to how he has formed the lay out and travelled to Chennai for four times for getting approval for the lay out. According to the First Defendant, he has made tireless efforts physically as well as mentally for forming the lay outs. In the Written Statement, it is alleged that the Plaintiff is liable to reimburse Rs.2,76,951/- to the First Defendant apart from the service charges of Rs.50,000/-.

4. The Trial commenced. Onbehalf of the Plaintiff, Plaintiff’s Witnesses were examined and also cross-examined. When the case was posted for the defence side evidence, I.A.No.152 of 2003 was filed by the First Defendant to appoint an Advocate Commissioner for examining him. According to the First Defendant, he is aged 87 years and is having Heart and breathing ailments and that he had been taking treatment for almost four years. Due to sudden Heart ailment and chronic asthma, he was admitted in V.G.Hospital and that he is undergoing treatment. Under such circumstances, a Commissioner is to be appointed for examining him. The Application was filed under Order 26 Rules 2,3 and 4-A read with Section 151 C.P.C seeking for Appointment of an Advocate Commissioner for examination of the First Defendant.

5. The Application was resisted by the Plaintiff by alleging that the First