Risk of injustice to defendants if plaintiff is allowed to be examined on Commission.

This revision is directed against the order of the learned Subordinate Judge, Cuddalore, allowing an application filed by the Power of Attorney Agent of the plaintiff to examine the plaintiff on commission.

2. The power of Attorney Agent wanted to examine his father, the plaintiff, on commission as he was extremely old and weak and confined to bed at Tirukoilur. That application was resisted on the ground that when the matter came up for hearing on 16th July, 1984 there was no representation that the plaintiff was old and he will not be in a position to attend Court, that the plaintiff is sought to be kept out of box by the power of Attorney Agent who is none other than his son and that if a Commissioner is appointed to examine the plaintiff on commission, the Court will not have the advantage of observing the demeanour of the plaintiff which is an important factor in deciding the suit.

3. The petition was allowed on the ground that the plaintiff is an aged man of 92 years and is suffering from heart disease and hypertension. That order is challenged in this revision.

4. The plaintiff, represented by his power of Attorney Agent, has filed the suit for recovery of a sum of Rs.25,900 against the defendants. The first defendant is the daughter-in-law of M.M.Swamy, the plaintiff and the widow of one of the sons of Swamy. The Power of Attorney Agent of the plaintiff is the son of M.M. Swamy. It is clear even from the plaint averments that there was deep misunderstanding and total estrangement betwen Swamy, the father, and Govindarajulu, his son, who is the Power of Attorney Agent. One of the contentions of the daughter-in-law, as seen from her written statement, is that after the death of her husband, the said Swamy executed a settlement. The written statement does not say in whose favour the settlement was executed, but from the plaint averments, it is seen that it was executed in favour of the first defendant (Rajeevi). It is also seen from her written statement that the first defendant questions the very execution of the (sic) settlement. Admittedly Swamy and his son, the power of attorney agent, were not on good, terms. The apprehension of the first defendant is that the power of attorney agent himself claimed some property belonging to the husband of the first defendant and in fact the son of the power of attorney agent filed a suit, O.S.No.54 of 1976 on the file of the Subordinate Judge, Cuddalore, for partition. That suit was dismissed. It is pointed out by the learned counsel for the revision petitioners that in order to keep the plaintiff out of box, the power of Attorney agent himself has filed this petition. These allegations in the plaint and the written statement are now referred to point out contentions of the parties. The father-in-law, Swamy, is said to have executed a settlement in favour of the first defendant, when his son, Dayalu, who had married the first defendant, died.

5. The second defendant opposed the application for appointment of Commissioner on the ground that the plaintiff, Swamy, is kept in the house of his daughter, the sister-in-law of the first defendant and it would be difficult for the defendants to examine the plaintiff in his daughter house at Tirukoilur. It is further pointed out that his demeanour in the box has to be observed by the learned Subordinate Judge and therefore the plaintiff should not be examined on commission. Thirdly, it is contended that being a party to the suit, the plaintiff should not ordinarily be examined on commission."

6. The learned Subordinate Judge has stated that if the defendants do not want to go to the house of the daughter of the plaintiff, where the plaintiff is, for cross-examining him, some other venue can be found for the examination of the plaintiff. If the plaintiff is in a position to go to some other venue as suggested by the Subordinate Judge, he could as well go over to the Court for being examined. Ananthanarayanan, C.J. in Lakshman Chettia