E.R Babu @ Pavu vs Mohan Joseph

C.S Dias, J

The original petition is filed, to set aside the order passed by the court below in I.A.No.8/2022 in O.S.No.40/2018 of the Court of the IInd Additional Subordinate Judge, Thrissur.

The petitioners' case, in brief, in the memorandum of original petition is that, they are the defendants 1 and 2 in O.S.No.40/2018 before the above court, which is filed by the above respondent, seeking a decree for recovery of money. The suit was listed for trial on 16.06.2022. Then, the respondent filed Ext.P2 application, to record his evidence through an Advocate Commissioner. The court below allowed the application. The petitioner's were under the bonafide belief that evidence of both parties would be recorded through the same Advocate commissioner. However, the petitioners later came to know that the order was confined to the examination of the respondent alone. Even though the petitioners made an application for the certified copy of the order in I.A.No.8/2022, the same has not been received. Now the court below is proceeding with the trial of the suit. The Advocate commissioner would file his report on 22.06.2022. Thereafter, the petitioners would be compelled to mount the box and let in evidence. The Ext.P2 application has been filed by the respondent only as to avoid his examination in open court. As the respondent has been given an opportunity to be examined through an Advocate Commissioner and the same benefit may be extended to the petitioners also. Hence, the court below may be directed to issue the order passed in I.A.No.8/2022 and the same may be set aside and all further proceedings in O.S.No.40/2018 may be directed to be kept in abeyance. Hence, the original petition.

Heard Sri.Eldho.K, the learned counsel appearing for the petitioners. In view of the limited relief that I propose to pass, I dispense with notice to the respondent.

The limited grievance of the petitioners is that the court below has on the application made by the respondent permitted his cross-examination to be recorded by an Advocate Commissioner. However, the court below has limited the order to the respondent alone. In view of the appointment of an Advocate Commissioner to record the evidence of the respondent, I am of the firm view that the same benefit has to be extended to the petitioners also, since the 1st petitioner is a senior citizen.

In the above factual background, in exercise of the supervisory powers of this Court, under Article 227 of the Constitution of India, I direct the court below to direct the same Advocate Commissioner, who has recorded the cross-examination of the respondent to be deputed to record the cross-examination of the petitioners also. The petitioners shall pay the remuneration of the Advocate Commissioner as fixed by the Trial Court. Until such time, the court below shall not insist the petitioners personal presence for their cross-examination in open court.

With the above observations, the original petition is disposed of.