Witness testimony cannot be replaced unless substantial medical evidence of incapacity is provided; the trial court's decision upheld as valid.

ORDER :

1. This petition is filed by the petitioner, who is defendant No.4 before the trial Court, aggrieved by the order dated 16.10.2024 whereby defendant No.4 filed an application under Order 3 Rule 2 of CPC, seeking to permit the SPA holder of defendant No.4 to prosecute the case on behalf of defendant No.4 and also to discard the evidence of DW2 the said application came to be rejected by the trial Court and posted the matter for appearance of DW2 for further cross-examination.

2. It is the contention of learned counsel for petitioner/defendant No.4 that the petitioner is aged about 60 years and suffering from pain in the ears since December 2022 and she has visited doctors in the nearby locality and she has been instructed to approach Victoria Hospital, Bengaluru, for further treatment regarding the ear pain. It is also contended that the petitioner has visited Victoria Hospital and after giving her health condition details to the doctors, upon various examination, the doctors have told the petitioner that she is suffering from lumbago anxiety, hearing defers in both ears, rectal bleeding, abdominal pain, chronic fatigue and other old age related ailments. In this regard petitioner is unable to travel and walk for long distance, unable to hear properly and therefore due to these conditions she was unable to prosecute the suit in O.S.No.369/2010 personally for tendering herself for further cross-examination.

3. It is a contention of learned counsel for the petitioner that in view of the medical disability and pain and other old age related ailments stated herein above, he filed an application under Order 3 Rule 2 r/w Section 151 CPC to permit the Special Power of Attorney Holder who is none other than her son to prosecute the original suit on her behalf consequently to discard her evidence as DW2. It is a contention of learned counsel for the petitioner that the trial Court having dismissed both the applications, is illegal, arbitrary and perverse and the same deserves to be set aside. It is the contention of learned counsel for the petitioner that the trial Court has ignored to look into the aspect of the medical illness and the old age of the petitioner due to which she was unable to be personally present before the Court after briefly appearing at one instance where she was briefly cross- examined. Thereafter, the matter was adjourned from time to time and subsequently, memo filed on 10.01.2023 by the plaintiff came to be rejected and the case was adjourned for cross-examination of DW2 finally. It is contended that, thereafter DW2 has appeared and she was partly cross- examined. The matter came to be adjourned, on which day DW2 failed to appear and the application came to be filed to represent her through the Special Power of Attorney Holder.

4. It is the contention of learned counsel for the petitioner that even till this date the petitioner is suffering from pain in the ear and other old age ailments. It is the contention of learned counsel that despite her medical treatment taken pursuant to the order passed by this Court on 17.12.2024, whereby this Court directed the petitioner to be examined by a Medical Board to find out her disability both mental and physical. Based on which, a medical report is produced before this Court. The medical report submitted does not however support the case of the petitioner, as the opinion expressed is apart from other evaluations to the petitioner, the patient's hearing sensitivity is within normal limits for both right and left ear, is opined by the Medical Board. Therefore, it can be safely construed t