RAJESH BINDAL, J. - (1.) DEFENDANTS No.3 and 4 are before this court challenging the order dated 23.1.2012, passed by the learned court below, whereby the application filed by the plaintiffs -respondents No.1 and 2 for appointment of a Commission for recording the statement of Brig. H.S.Grewal as PW, was accepted.
(2.) BRIEFLY , the facts of the case are that respondents No.l and 2 filed a suit for declaration with the following prayer: "Suit for declaration that the two transfer deeds dated 30.6.2010 as executed by defendants No. 1 and 2 in favour of defendants No.3 and 4 respectively, whereby the defendants No.l and 2 have transferred their l/4th share each in House No.76, Sector 19 -A, Chandigarh in favour of defendants No.3 and 4 respectively, are null and void being violative of clause XIII of registered Sale Deed dated 9.4.1979 and have no effect on the rights of the plaintiffs, who are co -owners to the effect of l/4th share each in house No.76, Sector 19 -A, Chandigarh with a further stipulation to receive 1/4th share each on the death of their parents i.e. defendants No.1 and 2 and along with a Decree for joint possession along with Defendants No. 1 and 2 in respect of House No. 76, Sector 19 -A, Chandigarh (RP No.2932)." It is in the aforesaid suit that the plaintiffs filed application for appointment of Local Commissioner for examination of Brig. H.S.Grewal as PW. The application having been allowed by the court below, the order is challenged before this court.
(3.) LEARNED counsel for the petitioners submitted that in terms of the provisions of Order XVIII Rule 4 CPC, examination -in -chief of a witness has always to be on affidavit, which has to be filed in court. It is only for the purpose of cross -examination that a Commission can be appointed. In the present case, the witness has not filed his affidavit in court in his examination -in -chief, hence no Commission could be appointed for recording his statement. The Order passed by the learned court below being totally in violation of the provisions of law deserves to be set aside. In support of the submissions, reliance was placed upon the judgments of Hon'ble the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005(6) S.C.C. 344 a Full Bench of Andhra Pradesh High Court in Rita Pandit v. Atul Pandit, 2005(2) R.C.R. (Civil) 504 and a Single Bench judgment of Karnataka High Court in Drakshayini v. Gangavva and others, 2005(2) R.C.R. (Civil) 40.;