C.R.P.(MD)No.3049 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 23.11.2023

CORAM:

THE HON'BLE MR.JUSTICE K.MURALI SHANKAR

C.R.P.(MD)No.3049 of 2023

and

C.M.P.(MD)No.15753 of 2023

K.Soundarammal

... Petitioner/

Petitioner/

Plaintiff

Vs.

M.Marichamy Naidu

... Respondent/

Respondent/

Defendant

Prayer : This Civil Revision Petition filed under Article 227 of the

Constitution of India, to set aside the order passed in I.A.No.3 of 2022 in

O.S.No.143 of 2021, on the file of the District Munsif Court, Melur, dated

19.09.2023 by allowing this Civil Revision Petition.

For Petitioner

: M/s.P.Jessi Jeeva Priya

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C.R.P.(MD)No.3049 of 2023

ORDER

The Civil Revision Petition is directed against the order passed in

I.A.No.3 of 2022 in O.S.No.143 of 2021 dated 19.09.2023 on the file of

the District Munsif Court, Melur, Madurai, dismissing the application filed

under Order 26 Rule 1 to 3 C.P.C. for appointment of Advocate

Commissioner to examine the revision petitioner.

2. The revision petitioner has filed a suit in O.S.No.143 of 2021 for

declaration and that since the respondent had remained ex parte, the case

was posted for ex parte evidence.

3. The learned counsel appearing for the revision petitioner would

submit that since the revision petitioner was aged 80 years and suffering

from heart ailment disease, she was not in a position to move and she is

bed ridden and hence, the above application came to be filed to examine

her on commission, but the learned trial Judge, by observing that the

revision petitioner has not produced any certificate as contemplated under

Order 26 Rule 1 C.P.C., dismissed the application.

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C.R.P.(MD)No.3049 of 2023

4. The learned counsel appearing for the revision petitioner has

produced the medical certificate of the revision petitioner before this

Court. But admittedly, medical certificate has not been produced before

the trial Court. However, admittedly, the revision petitioner is aged 81

years. The learned counsel appearing for the revision petitioner has relied

on the judgment of this Court in

Nirmala Kamatchi Vs.

K.P.M.S.Mariappan and others reported in CDJ 2018 MHC 6827,

wherein, a learned Judge of this Court has observed,

“11. Now, the only question stood before me is whether

an Advocate Commissioner can be appointed in the present

case. I have carefully considered the materials placed before

me. It is seen that the first respondent is aged about 60 years

at the time of filing of suit in the year 2007 and now, he is

about 70 years old. He might be suffering due to old age also.

The first respondent, though not filed any medical certificate

to substantiate his claim that he is suffering of ailment and it

can be visualized as to how difficult, it would be for him to

come to the Court to give evidence.”

5. Considering the age of the revision petitioner and also taking note

of the medical certificate produced, this Court is inclined to permit the

revision petitioner to be examined on commission. Hence, the impugned

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C.R.P.(MD)No.3049 of 2023

order dated 19.09.2023 passed in I.A.No.3 of 2022 in O.S.No.143 of 2021

is hereby set aside and the learned District Munsif, Melur, is directed to

appoint an Advocate Commissioner to examine the revision petitioner in

her residence at Madurai, within a period of one week from the date of

receipt of a copy of this order and to fix the remuneration.

6. With the above direction, this Civil Revision Petition is allowed.

Consequently, connected Miscellaneous Petition is closed. No costs.

23.11.2023

NCC :yes/No

Index :yes/No

Internet:yes/No

csm

To

1. The District Munsif Court,

Melur.

2.The Section Officer,

VR Section,

Madurai Bench of Madras High Court,

Madurai.

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C.R.P.(MD)No.3049 of 2023

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