Devara Mallesham v. Akhila Bharateeya Kuruvamsa Nityanadana Choultry

THE HON'BLE SRI JUSTICE S.V.BHATT CIVIL REVISION PETITION No.4309 of 2017 ORDER:

Heard Mrs.G.Shoba, counsel for petitioner.

2.

Mr.K.Paraiah Chowdary, learned advocate appearing for revision petitioners in the Court below, filed affidavit on behalf of the revision petitioners herein, praying for appointment of advocate commissioner to record evidence of defendant Nos.1 and 2/revision petitioners at their address. The trial Court declined to exercise its discretion or jurisdiction to appoint advocate commissioner for recording evidence of revision petitioners herein. The order impugned in the revision reads thus:

"As per the petition both the petitioner nos.1 & 2 are aged 76 years and they are residents of Gudi Malkapur, Hyderabad, and Fathe Nagar, Hyderabad respectively. The defendants filed a petition in I.A.No.154/2017 under Order VIII Rule 1(a)(iii) to receive documents, with a list of 39 documents in support of their contention. All the documents were received on record on 13.6.2017. If all the documents are sought to be marked before the Commissioner, and the cross-examination with regard to all the documents before the Advocate Commissioner would take more sittings than one. The present suit relates to the year 2006, if an Advocate Commissioner is appointed, the procedure of recording evidence by the Advocate Commissioner would take much time by going to Hyderabad and also in view of 39 documents filed by the petitioners before the court, this

court is of the considered view that this matter shall be taken up without any adjournments and it shall be completed within no time. Hence, this court is not inclined to grant any more time for recording of evidence and by appointing an Advocate Commissioner. This suit is required to be disposed of on war footing. Under these circumstances this petition is dismissed."

3.

First of all, this Court is unable to appreciate how the counsel appearing for revision petitions can file application pleading the illhealth of a party and pray for appointment of advocate commissioner for recording evidence. The trial Court ought to have examined maintainability of such application before giving audience on merits in such applications, particularly in old matters. Even otherwise, I am satisfied the trial Court, which is seized of the pleadings and the evidence so far recorded, declined to exercise its jurisdiction. I do not see reason or ground to interdict with the views expressed by the trial Judge.

4.

Accordingly, the revision is dismissed. No order as to costs. 5.

Miscellaneous petitions, if any, pending, shall stand closed. ______________ S. V. BHATT, J 1st September 2017 mar