Syed Reshma, Vs Nemana Gurunadha Subramanyam

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARA

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FRIDAY, THE SEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HON’BLE SRI JUSTICE K. SURESH REDDY

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CIVIL REVISION PETITION NO: 304 OF 2025

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Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to begs to present this Memorandum of Civil^{RevisionPetition} against the Order and decree dated 31.12.2024 passedⁱⁿ I.A. No.483 of 2024 in O.S No. 24 of 2019 on the file of the IV Additional District Judge, Tirupati.

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Between:

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Syed Reshma, W/o. Naveen Bharath Kumar, Aged about 40^years, R/o D.No. 10-13-492, Reddy and Reddy Colony, Tirupati,^{TirupatiDistrict.}

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...Petitioner/Respondent/Defendant

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AND

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Nemana Gurunadha Subramanyam, S/o. Late N. Siva Prasad Rao Aged about 76 years, R/o. D. No.76, Ashok Nagar, Eluru,^{EluruDistrict.}

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G. Umadevi, W/o. N. Gurunadha Subramanyam, Aged^about67years R/o. D. No.76, Ashok Nagar, Eluru, Eluru District.

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...Respondents/Petitioners/Plaintiffs

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lA NO: 1 OF 2025

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Petition under Section 151 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all the further proceedings pertaining^{toO.SNo.24of2019} on the file of the IV Additional District Judge, Tirupati pending disposal of the above CRP.

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Counsel for the Petitioner: SRI KANDERI CHETHAN

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Counsel for the Respondents: SRI T.V. JAGGI REDDY

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The Court made the following ORDER:

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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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CIVIL REVISION PETITION No. 304 OF 2025

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Between;

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Syed Reshma, W/o Naveen Bharath Kumar, 40 years, R/o D.No. 10-13-492 Reddy and Reddy Colony, Tirupati, Tirupati District. Petitioner AND Nemana Gurunadha Subramanyam, S/o late N.Siva Prasad Rao, 76 years, R/o D.No. 76, Ashok Nagar, Eluru, Eluru District, and another Respondents

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Eluru, Eluru District, and another Respondents Date of Judgment Pronounced 07-03-2025

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SUBMITTED FOR APPROVAL:

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THE HON'BLE SRI JUSTICE K.SURESH REDDY

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Whether Reporters of Local newspapers
may be allowed to see the order? Yes/No
2. Whether the copy of order may n/
be marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wishes to see the
fair copy of the order? Yes/No

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»

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2

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*THE HON'BLE SRI JUSTICE K.SURESH REDDY

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+CIVIL REVISION PETITION No. 304 OF 2025

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%Dated: 07-03-2025

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Syed Reshma,

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W/o Naveen Bharath Kumar, 40 years, R/o D.No. 10-13-492, Reddy and Reddy. Colony, Tirupati, Tirupati District.

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Petitioner

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VERSUS

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$Nemana Gurunadha Subramanyam, S/o late N.Siva Prasad Rao, 76 years R/o D.No. 76, Ashok Nagar,

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Eluru, Eluru District, and another

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Respondents

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ICounsel for the petitioner

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Sri K.Chethan

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'^Counsel for the respondents

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Sri T.V.Jaggi Reddy

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<GIST;

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HEAD NOTE:

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? Cases referred: 1. (2011) 2 GLR 1479 2. 2006 (5) ALD 823

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HON'BLE SRI JUSTICE K.SURESH REDDY

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CIVIL REVISION PETITION No. 304 OF 2025

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ORDER:

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By this civil revision petition under Article 227 of^{theConstitution} of India, the petitioner-defendant has prayed for setting^{asidetheorder} dated 31-12-2024 in I.A.No. 483 of 2024 in O.S.No.^{24of2019onthe} file of the Court of learned IV Additional District Judge, Tirupati (for short, 'the trial Court').

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Respondent Nos. 1 and 2 herein, who are plaintiffs,^filedasuitin O.S.No. 24 of 2019 before the trial Court against the petitioner herein, who is defendant, seeking to declare that they are^{theabsoluteowners} of plaint schedule property and to direct the petitioner-defenda^nt to vacate plaint schedule property and handover possession^ofthesame and for other reliefs. The petitioner-defendant is^{contestingthesuitby} filing a written statement. In the aforesaid proceeding,^basedonthe pleadings, the trial Court framed issues and examined^{respondentNo.} 1 herein-plaintiff No. 1 as P.W.1 on 02-09-2024 and the crossexamination of P.W.1 has been deferred. Subsequently, the suit is being adjourned from time to time for cross-examination of P.W.1. While the suit stands thus, respondent Nos. 1 and 2-plaintiff^Nos. 1 and 2 filed I.A.No. 483 of 2024 under Order XXVI Rule 4^{readwithSection}

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151 of the Code of Civil Procedure (for short, C.P.C.') seeking to appoint advocate commissioner for the purpose of recording^evidenceof P.W.1 in Court premises at Tirupati or at any suitable place as ordered by the trial Court. The petitioner-defendant filed counter affidavit inter alia contending that taking advantage of his medical condition, respondent No. 1 is avoiding his cross-examination in open Court. The trial Court allowed the above said interlocutory application by the order under revision.

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Heard Sri K.Chetan, learned counsel appearing for the petitionerdefendant, and Sri T.V.Jaggi Reddy, learned counsel appearing for the caveators-respondent Nos. 1 and 2-plaintiff Nos. 1 and 2.

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The party seeking issue of commission must satisfy the Court that this is such an exceptional case where Court has no other option but to issue a commission considering the special circumstances. The broad principles which must necessarily be kept in mind while exercising discretion in the matter of issuing of commission for the examination of a witness are that the person invoking it must be bone fide in making the application. The reasons why the witness cannot be examined in Court must be carefully considered. Regard must be had to the conduct of the party and that it must be considered whether the examination on commission would result in manifest injustice to any party or is not

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%

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5

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calculated to permit the evidence being tested fairly^{orislikelytoprove} an abuse of process of Court. Justice above all is a paramount consideration and the discretion must be exercised^{infurtheranceofthe} same in the particular facts and circumstances of an individual case. The test for rejection of the application should be^{thattheapplicationis} not a bona fide one.

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Sri K.Chethan, learned counsel appearing for the petitionerdefendant, contends that if P.W.1 is allowed to be cross-examined by advocate commissioner, the trial Court would be deprived of an opportunity of noticing his demeanour and in support^{ofhiscontention,} learned counsel places reliance on the judgment of^High Court of Gujarat in Kumarpal Mankelal Shah Vs. Kheemraj Ganeshmal Balar\

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One should not lose sight of the provisions of Order^XVIIIRule4 of C.P.C. which is amended in 1999 and effective from 1®* July, 2002, where it says that the commissioner may record remarks^as it thinks material respecting the demeanour of any witness while under examination provided that any objection raised during^{therecordingof} evidence before the commissioner, it may be recorded by him and it may be decided by the Court at the stage of arguments. Similarly,

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(2011)2 GLR 1479

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provision of Order XVIII Rule 19 is also relevant in^{thiscasewhichhas} been amended in 1999 effective from 1®* July, 2002. The said provision of Rule 19 is extracted below;

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"19. Power to get statements recorded on commission:Notwithstanding anything contained in these rules, the Court may instead of examining witnesses in open Court, direct their statements to be recorded on commission under Rule^4AofOrder XXVI."

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If provisions of Order XVIII Rule 4, Order XVIII Rule^{19andOrderXXVI} Rules 1 and 4-A (as amended) are conjointly taken up^{forconsideration,} it comes out that Court has been vested with wide discretion^toissue commission for recording of evidence on certain specified circumstances if the Court's conscience is satisfied that the circumstances are such that it warrants appointment of commission. The Court has every right to differ from the ordinary^{ruleofcalling} a witness into the witness box instead may issue a commission for recording of evidence. The will of the legislature, which has by amending the Code provided for recording evidence by the commissioner for saving Court's time taken for the said purpose, cannot be defeated merely on the ground that the Court would be deprived^of watching the demeanour of the witnesses.

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Learned counsel appearing for the petitioner-defendant also places reliance on the judgment of erstwhile High Court of Andhra Pradesh at Hyderabad in T.Srinivasa Rao Vs. T.Venkata Rangaiah and another^ to contend that appointment of commissioners^torecord the cross-examination of an otherwise able witness is prone to weaken the very adjudicatory process and it would naturally tell upon the quality of adjudication and that the question as to whether^{recourseshouldbe} had to such a measure would depend upon the pressure^ofworkinthe Court, the condition of witness i.e. the difficulty for him to appear before the Court, the nature of questions that may crop up during crossexamination, such as the occasion to overrule to sustain any objections. and determination as to the admissibility and relevancy^ofdocuments etc. It is no doubt true that when the witnesses are^{abletoattendthe} Court, normally, they may have to be examined before^theCourtand during cross-examination, it would be advantageous^forthe Court to observe the demeanour of the witnesses. It is also^{truethatthelearned} Judge can also record the evidence while observing^{thedemeanourof} the witnesses. In the case on hand, respondent No. 1-plaintiff No. 1 is shown to be aged about 77 years in medical certificates^andhasbeen suffering from pancreatic cancer and it is also submitted^{beforethetrial} Court that he has urinal issues. The plea that observing^thedemeanour

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2 2006 (5) ALD 823

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of a witness by the learned Judge is not, however, a strong or social ground for refusing issue of commission for examination of respondent No. 1-plaintiff No. 1 if his application is taken into consideration when the plea has been taken by him that he is suffering from pancreatic cancer and urinal issues. Issue commission being a matter of discretion, each case has to be judged on its particular facts and ends of justice must undoubtedly be paramount consideration. The Court has got discretion to relax the rule only in the circumstances specified in the said rules under order XXVI of C.P.C. Such rules ought not to be relaxed or nullified because the witness is a man of rank or is a man of social status and that it will be derogatory to him or her to appear personally in Court. The case here is different. Here respondent No. 1- plaintiff No. 1 has not prayed for commission on the ground of rank or social status but for his genuine inability to appear before the Court due to his various old age ailments. When it is brought to the notice of the Court that a party due to pancreatic cancer and urinal issues is unable to attend the Court, refusing to issue a commission for recording evidence on the ground of demeanour in the considered opinion of this Court cannot be justified. Therefore, the judgments relied upon by learned counsel appearing for the petitioner-defendant have no manner of application in the present case as the facts and circumstances of the said cases are totally different from the present^case.

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After taking note of the facts pleaded by the parties and taking note of the materials on record, this Court's conscience is satisfied that respondent No. 1 is bona fide in making the application and there^is no reason to refuse to issue a commission for recording evidence of respondent No. 1-plaintiff No. 1 only on the ground^{thattheCourtwould} be deprived of watching his demeanour. In the aforementioned facts and circumstances of the case, the trial Court has rightly allowed the interlocutory application and this Court does not find any error whether jurisdictional or otherwise in the order of the trial Court warranting interference in exercise of the supervisory jurisdiction^{ofthisCourtunder} Article 227 of the Constitution of India.

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Accordingly, the civil revision petition is dismissed at the admission stage. However, as the suit is of the year 2019, the trial Court is directed to specify the timie within which the commission should complete the recording of evidence of P.W.1 and after the commissioner files report with the evidence, the trial Court shall dispose of the suit as expeditiously as possible. Pending miscellaneous applications, if any, shall stand dismissed in consequence.

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To,

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One Fair Copy to the HON’BLE SRI JUSTICE K. SURESH REDDY (for his Lordship’s kind perusal)

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