ORDER:

This Civil Revision Petition under Article 227 of the Constitution of India is directed to set aside the order dated 10.04.2019 in I.A.No.22 of 2019 in O.S.No.52 of 2011 passed by the Junior Civil Judge, Pargi, Ranga Reddy District.

2. Heard learned counsel for the petitioner. None appeared for the respondent. Perused the record.

3. The respondent – plaintiff filed the suit in O.S.No.52 of 2011 for perpetual Injunction against the petitioner- defendant No.2 and another restraining them from interfering with the peaceful possession and enjoyment over the suit plot. While so, during the course of trial, the revision petitioner filed I.A.No.22 of 2019 under Order XXVI Rule 4A read with Section 151 of the Code of Civil Procedure, 1908 (for short “CPC”) to appoint an Advocate Commissioner to examine the defendant No.2 as DW1 in the main suit as the defendant No.2 is unable to appear before the Court because of old age ailments. However, the trial Court dismissed the said application vide order dated 10.04.2019 stating that the petitioner failed to file any proof to show that because of ill-health defendant No.2 is unable to appear before the Court. Challenging the said order, the present revision is filed.

4. Learned counsel for the petitioner submits that the petitioner is aged about 70 years and suffering from old age ailments and the chief affidavit as DW2 has already filed in the Court. The application is filed to appoint an advocate commissioner for cross examination as the petitioner is unable to appear before the Court. He further submits that the trial Court committed error in dismissing the said application and prayed to set aside the order.

5. For the sake of reference, the provision of Order XXVI Rule 4A of CPC is reproduced herein below:

Order XXVI Rule 4A - Commission for examination of any person resident within the local limits of the jurisdiction of the Court.—

Notwithstanding anything contained in these rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.

6. A perusal of the impugned order shows that the trial Court has not considered the said application on the ground that the petitioner failed to file any proof that the petitioner is suffering from ill-health and was unable to appear before the Court for the purpose of cross examination. However, keeping in view the submissions of the learned counsel for petitioner that the petitioner is aged about 70 years and was unable to appear before the Court because of old age ailments, he can be permitted to cross examine by appointing an advocate commissioner.

7. Having regarding to the circumstances, I am of the view that the trial Court committed error in not giving opportunity to the petitioner for cross examination by appointing an advocate commissioner under Order 26 Rule 4A of CPC, hence, the order of the trial Court suffers from infirmity and the same is liable to be set aside.

8. In the result, the civil revision petition is allowed. The impugned order dated 10.04.2019 in I.A.No.22 of 2019 in O.S.No.52 of 2011 passed by the Junior Civil Judge, Pargi, Ranga Reddy District, is hereby set aside. Consequently, I.A.No.22 of 2019 stands allowed. There shall be no order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

___________________________ JUSTICE A.SANTHOSH REDDY Date: 20.03.2023 ns