ORDER:

1st Defendant in the suit filed the above revision under Article 227 of the Constitution of India against the docket order dated 19.04.2022 in I.A.No.153 of 2022 in O.S.No.19 of 2020 on the file of the II Additional Senior Civil Judge, Kakinada.

2. Suit O.S.No.19 of 2020 was filed by the plaintiff represented by natural father-cum-GPA holder against the defendants for declaration of title, recovery of possession and for mandatory injunction.

3. Defendant is contesting the suit by filing written statement.

4. Basing on pleadings trial Court framed necessary issues and the suit is coming up for trial.

5. Plaintiff filed I.A.No.153 of 2022 under XXVI Rule 4 read with Section 151 of CPC seeking to appoint an Advocate Commissioner for cross-examination of P.W.1 at Hyderabad.

6. In the affidavit filed in support of the petition, it was contended inter alia that the defendant is aged 74 years and suffering from old aged ailments and also undergone dental surgery and as such, unable to move from Hyderabad; that he filed affidavit in chief-examination and in view of the health condition, he filed the above application to appoint an Advocate-Commissioner for marking of documents and for cross-examination.

7. Counter was filed by the respondents/defendants opposing the application. It was contended inter alia that in the affidavit filed in support of the petition, it was sworn at Kakinada. On the date of affidavit filed in lieu of chief- examination, he came down to Kakinada and filed the affidavit in chief and when the Advocate reported ready for cross- examination, witness did not cooperate and later filed the affidavit. Hence, prayed to dismiss the application.

8. By order dated 19.04.2022 trial Court allowed the application and appointed an Advocate Commissioner.

Aggrieved by the same, present revision is filed.

9. Heard learned counsel on both sides.

10. Learned counsel for the petitioner would contend that the GPA holder of the petitioner/plaintiff in fact came down to Kakinada and deposed to his affidavit. He would also contend that going by the order of the trial Court, the verification of chief-examination affidavit is done at Kakinada. Thus, the witness, in fact, came down to Kakinada and filed affidavit in lieu of chief examination and avoided cross examination. The suit is for declaration, the demeanor of the witness is also required being GPA holder of the plaintiff.

11. Learned counsel for the respondent would contend that the defendant did not come down to Kakinada from Hyderabad, and, it is only a typographical mistake. The affidavit is attested at Hyderabad and the defendant did not come to Kakinada. He would contend that in view of the old aged ailments, the Court below exercised its discretion and prayed to dismiss the petition.

12. No doubt, suit is filed for declaration, for recovery of possession and for mandatory injunction. Deponent is the GPA holder of the plaintiff in the suit. The address of the deponent is shown at Hyderabad. However, in the affidavit filed in support of the petition, it was mentioned that the deponent came down to Kakinada. Apart from that as observed by the trial court affidavit filed in lieu of his chief examination, the verification of the defendant is done at Kakinada Bar Association. Deponent having come down to Kakinada and filed his affidavit in chief- examination should subject himself for cross examination. The reason assigned in the affidavit filed in support of the petition to appoint advocate commissioner is not appealing as true and correct.

13. In Salem Advocate Bar Association, T.N vs. Union of India1 the Hon’ble Apex Count at Para No.5 held as under:

1 (2005) 6 Supreme Court Cases 344

“The amendment provides that in every case, the examination-in- chief of a witness shall be on affidavit. The Court has already been vested with power to permit affidavits to be filed as evidence as provided in Order XIX Rules 1 and 2 of the Code. It has to be kept in view that the right of cross- exami