ORDER:

The present C.R.P is filed challenging the order passed in I.A.No.145 of 2023 in O.S.No.4 of 2018 on the file of the Senior Civil Judge at Parvathipuram, dated 12.09.2023.

2. Heard learned counsel for the petitioner and respondents. 3. Learned counsel for the petitioner submits that the said I.A.No.145 of 2023 in O.S.No.4 of 2018, is filed under order 26, Rule I of CPC on behalf of the petitioner herein seeking for appointment of Advocate Commissioner for examination of the petitioner herein. Since, the petitioner is a senior citizen and aged about 68 years, is suffering with B.P., Diabetes and T.B. Learned counsel for the petitioner submits that the petitioner filed an affidavit as under:

“It is submitted that, the above suit was posted for defendant side further evidence, but due to my ill-health I am not able to attend to depose in the suit. Since some time past my health is in ditterent. I am not able to move from my bad, due to high B.P and I am High diabetic patient and also I am not able to speak properly, due to T.B without intervals. The Doctor who is treating me has advised complete bad rest and I am getting medical treatment till now regularly. The prescriptions prescribed by the doctor treating me is hear with filed. Therefore, due to my bad state of health I am compelled to seek for appointment of a commissioner to examine me on commission. My oral evidence is necessary and essential in the suit.

Therefore, in the interest of justice and equity I pray that an advocate- commissioner may be appoint for examining me on commission in the interest of justice.”

4. He further submits that while filing the affidavit along with the petition, the petitioner pleaded that she is being a senior citizen, suffering with some of the ailments, the prayer of the petitioner should have been considered by the Court below.

5. Learned counsel for the petitioner submits that, in view of the Amendment of Order XVIII Rule (4) and Order XXVI Rule 4- A of CPC, the claim of the petitioner should be considered and I.A.No.145 of 2023 should have been allowed. But, contrary to the object of the amendments, Order XVIII Rule 4 as well as Order XXVI Rule 4-A of CPC, this Court passed impugned order in I.A.No.145 of 2023, dated 12.09.2023, on the file of Senior Civil Judge, Parvathipuram, rejecting the claim of the petitioner for appointment of Advocate-Commissioner for recording the evidence of the petitioner.

6. On the other hand, learned counsel for the respondents submits that except stating in the affidavit that, the petitioner is a senior citizen, she is suffering with so many ailments and she is not in a position to move out of the bed, no piece of evidence is filed in support of her claim.

7. He further submits that since the petitioner herein claims that she is bed ridden and she cannot move from her house, it is an obligation on part of the petitioner to submit medical reports to prove her case, for which the respondents relied upon the judgment rendered by this Hon’ble Court in Dantham Chinna Chengachari Vs. Dantham Pedda Changachari and Ors. vide C.R.P.No.2535 of 1999, dated 10.09.1999 wherein it is held as under:

“4. On hearing both sides, this Court directs that if the first defendant is able to produce the medical certificate to the effect that the said witness is totally bedridden and not able to attend the Court (In that event) only the learned Judge should appoint the Advocate-Commissioner to record his statement. The order impugned is hereby set aside. The 1st respondent herein is given one more opportunity to produce the medical certificate into Court within the span of eight (8) days from the date of receipt of the order. If no such medical certificate is produced, then LA. No.719/99 is deemed to have been dismissed.”

8. He further submitted that in view of the ratio laid down by this Court as stated supra in the absence of any medical evidence in respect of the claim of the petitioner, she is not entitled for recording the evi