Madras High Court
Mathew Samuel vs Edapadi K.Palanisamy on 5 January, 2024
Author: R.Mahadevan
Bench: R.Mahadevan, Mohammed Shaffiq
O.S.A.No.231 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2024
CORAM
HE HONOURABLE MR.JUSTICE R.MAHADEVAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
O.S.A.No.231 of 2023
and
C.M.P.No.27593 of 2023
Mathew Samuel .. Appellant
Vs.
1.Edapadi K.Palanisamy
2.Jibin Pulian Godan
3.Shija Anil
4.Shivani
5.Radha Krishnan
6.Sayan
7.Valayar Manoj
..Respondents
PRAYER: Original Side Appeal filed under Clause 15 of the Letters Patent
read with Order XXXVI Rule 1 and 9 of the Original Side Rules, praying to set
aside the fair and decreetal order passed by the learned Judge in A.No.5731 of
2023 in C.S.No.82 of 2019 dated 07.11.2023.
For Appellant : Mr.N.R.Elango, Senior Counsel
For Respondents : Mr.S.R.Rajagopal, Senior Counsel
Mr.S.R.Raghunathan
for Mr.V.Anil Kumar for R1
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1/10
O.S.A.No.231 of 2023
JUDGMENT
(Judgment of the Court was made by R.Mahadevan,J.)
Heard the learned senior counsel appearing for the appellant as well as
the first respondent herein and also perused the materials available on record.
2.The first respondent / plaintiff is the former Chief Minister of the State
of Tamil Nadu and presently, the leader of Opposition party. In connection with
a defamatory video pertaining to the criminal trespass, murder and robbery that
occurred in the Kodanadu Estate belonging to the erstwhile Chief Minister of
Tamil Nadu and former leader of the first respondent's political party, late Selvi
J.Jayalalithaa in 2017, and the suspicious death of people, particularly,
Mr.Kanakaraj, an accused, supposedly involved in the said crime, uploaded in
the Youtube and in the social media, he had preferred a suit in O.S. No. 82 of
2019, against the appellant and respondents 2 to 7 herein / defendants 1 to 7 for
the following reliefs:
“(i)Directing the defendants jointly and severally to make payment of
a sum of Rs.1,10,00,000/- towards damages caused to the plaintiff by
uploading of the Video in the YouTube and in the Social Media which is filed
as Document Nos.1 to 3 along with plaint;
(ii)Permanent injunction restraining the defendants, their men, agents,
servants, person or persons acting through or under them or on their behalf
from in any manner whatsoever releasing, circulating, publishing any video
clippings or articles and/or give press interviews and/or post any items,
messages on social media containing any allegation as found or resembling
to the one in the document Nos.1 to 3 filed along with the plaint;
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(iii)Cost of the suit.”
3.A perusal of the records would reveal that by order dated 30.03.2021,
issues were framed and the suit was directed to be posted before the learned
Master for recording evidence. Accordingly, the case was posted before the
learned Additional Master -I on 30.04.2021 for recording the evidence of the
first respondent herein. But, the first respondent did not appear for recording
evidence. After two years, without recording the evidence of the first
respondent, the learned Master by order dated 21.07.2023, directed the suit to
be posted before the learned Judge.
4.While so, the first respondent has taken out an application in
A.No.5731 of 2023 in CS No. 82 of 2019 seeking to appoint an Advocate as
Commissioner for recording his evidence. The learned Judge allowed the said
application, by order dated 07.11.2023, the relevant passage of which is
profitably extracted below:
“6.I have perused the entire materials. Without going into the merits of
the case, it is relevant to note that Order XVIII Rule 4 and Order XXVI Rule
4A of Code of Civil Procedure were amended by Act 22 of 2002 and Act 46 of
1999 respectively, w.e.f. 01-07-2002, wherein, the evidence of the witness can
be examined by the Commissioner also. The Commissioner also, while
recording the evidence, may record such remarks including the demeanour of
the witness.
7.Therefore, the apprehension of the learned Senior Counsel for the
first respondent that the Commissioner cannot make a remark and note down
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the demeanour of the witnesses has no legs to stand. Once, the Commissioner
is appointed by the Court to record the evidences, he is entitled to record such
remarks as to the demeanour of the witness or the parties during such
proceedings.
8.Such view of the matter, the apprehension of the learned Senior
Counsel for the first respondent that sensitive questions cannot be asked while
examining the parties during the Commission cannot be countenanced.
9.Even during the cross examination, the parties are at liberty to
discredit the witness in the manner known to law. Therefore, the apprehension
or the contention made by the first respondent/ defendant in this regard also
has to be rejected.
10.Considering the fact that the petitioner is a former Chief Minister
of the State of Tamil Nadu and presently the leader of opposition party,
directing him to appear before the Court, in fact, it may lead to unwarranted
crowd in the court premises also. To avoid those things, this Court is of the
view that he can be examined through the Advocate Commissioner.
11.Accordingly, this Court appoints, Mr.S.KARTHIKEI BALAN,
No.224, KB Law Chambers, 4th Floor, LIC Building, Near Hot Chips Hotel,
NSC Bose Road, Parrys Corner, Chennai – 600 001, Mobile No.98945 02341
is appointed as an advocate commissioner for recording evidence of the
plaintiff in both chief and cross examination. The remuneration to the
Advocate Commissioner is fixed at Rs.50,000/- and the same shall be paid by
the plaintiff directly to the Advocate Commissioner. The Advocate
Commissioner shall inform the dates of examination to both sides and after
getting convenient time from both sides, he shall record and complete the
evidence at the plaintiff's official residence namely NB-9, Seveenthi TSKR
Road, Chennai – 600 028.
11.Both the chief and cross examination of the witnesses shall be
completed before 15.12.2023 and file the evidence of the witnesses along with
the Advocate Commissioner's report before this Court, on 15.12.2023.”
Aggrieved by the aforesaid order passed by the learned Judge, the appellant /
first defendant has come up with this original side appeal.
5.On 01.12.2023, when the matter was taken up for admission, the
learned senior counsel for the appellant submitted that the application seeking
appointment of an Advocate Commissioner for recording evidence of the
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plaintiff himself, has been filed, after an enormous delay of 2 years, but the
same was allowed by the learned Judge, without taking note of such huge delay.
Referring to paragraph 6 of the order impugned herein, the learned senior
counsel submitted that the order appointing the Commissioner was passed
under Order XXVI Rule 4A of the Civil Procedure Code (in short, “the CPC”),
whereas the actual rule under which the Commissioner was appointed, is Order
XXVI Rule 1 of the CPC and hence, the Learned Judge erred in
mis-appreciation of the correct provision relating to appointment of
Commissioner for recording the evidence. The learned senior counsel further
submitted that the Commission can be ordered for examination of witness and
not for the party himself. In this regard, he relied on the following decisions:
(i)Zabiya Bibi v. A.Sivaperumal [1968- 81 -LW 430(Mad)], wherein it
was pointed out by this court that there is vital difference between a witness and
a party to the suit, and hence, no interference is required in rejecting the
application filed seeking examination of party herself on commission.
(ii)Rajeevi Ammal & Jayaraman v. M.M.Swami Naidu [1986 -99 -LW
-913], in which, this court was of the view that in according the privilege of the
plaintiff being examined on commission, there is grave risk of doing injustice to
the defendants.
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Relying on the decision in Muhammad Zackria v. Abdul Karim Rowther [1956
(2) MLJ 371], the learned senior counsel submitted that the demeanor of
witness has to be recorded by the Court and not by the Commissioner. However,
the learned Judge erred in allowing the application seeking appointment of
commissioner to record the evidence of the plaintiff himself.
6.On the other hand, the learned senior counsel appearing for the first
respondent submitted that the respondent is a former Chief Minister of the State
of Tamil Nadu and if he appears in person, it would cause serious
inconvenience, not just to him, but to the public in general. Moreover, there are
security issues for him to appear before the court and give evidence. Thus,
according to the learned senior counsel, considering the totality of
circumstances, the Learned Judge has rightly passed the order impugned herein
and the same need not be interfered with by this court.
7.As a riposte, the learned senior counsel for the appellant submitted that
the entire High Court premises is guarded by CISF and no untoward incident
can possibly happen. The learned senior counsel further submitted that it could
be seen from the records that the first respondent has taken more than 21
adjournments to lead evidence. No reason has been adduced by the first
respondent for non-appearance in person before the Court. However, without
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considering the conduct of the first respondent/plaintiff, the learned Judge erred
in allowing his claim. It is also submitted that Order XXVI Rule 4A of the CPC
came into effect, in the year 2002, when Video conferencing was not an option
of appearance in Courts of law. Hence, the decisions rendered by the courts in
relation to this provision, in earlier point of time, would not be directly
applicable to the present era. Stating so, the learned senior counsel prayed to
allow this appeal by setting aside the order of the learned Judge.
8.This court has considered the submissions made by the learned senior
counsel appearing on either side and also perused the materials carefully and
meticulously. It is settled law that the power to issue commission for recording
the evidence is discretionary. The evidence of witness is normally / usually
recorded by examining the person in Court and it is only in exceptional cases, a
commission would be appointed for examination. The court is duty bound to
exercise its discretionary power more cautiously and sparingly, in a case where
the party to the litigation himself/ herself claims to be examined by a
commission. The court can adopt a liberal approach in such cases, if both the
parties express consent to the appointment of commission. In the present case,
the appellant raised serious objections for appointment of Advocate
Commissioner for recording the evidence of the plaintiff / first respondent,
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stating inter alia that the plaintiff failed to appear before the learned Master for
more than 21 hearings for the past two years and hence, the matter was directed
to be posted before the learned Judge, without recording his evidence. The
contentions made by the learned senior counsel for the appellant, more
particularly, that the demeanor of a party to the litigation would be better
appreciated only by the court and not by the Commissioner, finds merit and
acceptance by this court. The plaintiff having filed the suit on his own choice,
cannot be permitted to give evidence on commission, as he is very much
available within the jurisdiction of the court, where the suit is pending. Citing
security issues for non-appearance before the learned Master for recording
evidence, cannot be countenanced by this court. All are equal before law. Hence,
the order passed by the learned Judge allowing the claim of the first respondent
/ plaintiff to appoint an Advocate Commissioner to record his evidence, cannot
be allowed to be sustained.
9.When this court expressed its view as regards the order impugned
herein, the learned senior counsel appearing for the first respondent / plaintiff
sought a short accommodation for getting instructions from his client as to his
appearance before the learned Master for the purpose of giving evidence.
10.Accordingly, today, when the matter was taken up for consideration,
the learned Senior Counsel appearing for the first respondent, on instructions,
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submitted that the first respondent is a law abiding citizen and he is ready to
appear before the learned Additional Master -I and give evidence. Citing pongal
holidays as well as ensuing assembly sessions, the learned Senior counsel
prayed this court to fix a date, so as to enable the first respondent to appear and
give evidence before the Additional Master -I, for which, the learned senior
counsel appearing for the appellant has no serious objection.
11.In view of the above, the order passed by the learned Judge is set aside
and the matter is directed to be posted before the learned Additional Master -I.
The first respondent / plaintiff is directed to appear before the learned
Additional Master -I and give evidence on 30.01.2024 and 31.01.2024. On
completion of the same, the matter be posted before the learned Judge for
further proceedings.
12.With the aforesaid directions, this appeal is disposed of. No costs.
Consequently, connected miscellaneous petition is closed.
[R.M.D.,J] [M.S.Q.,J]
05.01.2024
Speaking (or) Non Speaking Order
Index:Yes/No
Neutral Citation: Yes/No
shk/mka
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R.MAHADEVAN, J.
AND
MOHAMMED SHAFFIQ, J.
shk/mka
O.S.A.No.231 of 2023 and
05.01.2024
https://www.mhc.tn.gov.in/judis
