ORDER
1. In the instant revisional application the plaintiff/petitioner has challenged the order No.38 dated 9-1-1992 passed by the learned Munsif, 2nd Court, at Barasat in Title Suit No. 565 of 1986 by which the Learned Munsif has allowed the prayer of the defendant opposite party for examining the opposite on commission under the provisions of Order XXVI, Rule 1 of the Code of Civil Procedure.
2. The said application under Order XXVI, Rule 1 for such examination of the defendant on commission was made on the ground of the inability of the defendant to come before the Court because of her illness and old age and in support of the same a medical certificate was produced. Such application was contested by the plaintiff by filing an objection contending inter alia that such application does not disclose the nature of disease, condition of the patient and other relevant particulars regarding the sikness and/ or infirmity of the patient.
3. Mr. Ajit Kumar Roy with Mr. Kanak Kumar Chatterjee appearing for the petitioner has challenged the aforesaid order passed by the Learned Munsif on the ground
that the order does not disclose any reason for allowing the application nor does it appear from the order that the objection raised by the plaintiff against the aforesaid application was considered by the Learned Munsif at all. Mr. Roy has further submitted that Order XXVI, Rule 1 of the Code of Civil Procedure under which the Court has power to permit examination of witness on commission is an exception to the general rule and the same can be permitted only when the Court is satisfied that the circumstances under which such exception can be made exists but in the instant case the impugned order does not disclose at all that such satisfaction was arrived at by the Learned Munsif after consideration of all matters. In this connection Mr. Roy has relied on the decisions and (1935) 39 Cal WN 595.
4. Mr. Bidyut Kumar Banerjee with Miss Sheila Sarkar appearing for the opposite party in support of the impugned order has contended inter alia that it is clear from the order that the Learned Munsif has considered the medical certificate filed by the defendant in support of the fact that the defendant because of her infirmity due to old age and femur fracture is unable to come to Court and has allowed the application considering and accepting such medical certificate. He has further submitted that from the statement of the Learned Munsif in the impugned order that he has considered the case it is evident that after such consideration he has become satisfied about the inability of the defendant to come before the Court to depose. In this connection he has relied on a decision reported in 87 Cal WN 1047 : (AIR 1984 NOC 58) (Cal) and has submitted inter alia that if from the records it appears there were materials on which such satisfaction could have been arrived at, the High Court should not interfere in its revisional jurisdiction, the same being a discretionary relief.
5. In my view, although the power of the Court under Order XXVI, Rule 1 of the Code
of Civil Procedure is discretionary and the order passed under the aforesaid provision, permitting a witness to be examined in commission may not be elaborate, it is necessary for the Court to record its satisfaction as to the existence of the circumstances under which the witness is being allowed to be examined on commission, the same being an exception to the general rule.
6. As it has been held by this Hon’ble Court in the case of Panchkari Mitra v. Panchanan Saha reported, in . “The Court has a discretion to grant or refuse a commission but the discretion has got to be exercised judicially. If the plaintiff insists on the attendance of his witness in Court and the witness apply for their examination on commission, the Court undoubtedly will have to take into consideration the grounds upon which the commission is applied for but at the same time it cannot lose sight of the prejudice that might be caused to the plaintiff by reason of such commission being issued. If sickness or infirmity is alleged, the character and gravity of that sickness or infirmity have got to be assessed and the risk consequent upon a refusal to issue a commission will have to be taken into consideration. At the same time the importance of having the witnesses present before the Court, the advantages that would follow from their examination and cross examination in the presence of the Court and the emergency and which might arise of having them confronted or identified should not be altogether lost sight of. If all the matters are duly considered and the order is passed then and then only can it be said that the order has been passed in the exercise of a judicial discretion”.
7. Such a view was also taken in the case of Sarala Sundari Dasi v. Surendra Narayan Roy reported in (1935) 39 Cal WN 595 where it has been held “when an application for the examination on commission of a material witness residing within the jurisdiction of the Court is made, before a commission is issued the Court is under the obligation of considering and coming to a definite conclusion whether the witness is suffering, from any illness or if his so suffering, whether the nature of the illness would prevent the witness from attending Court or would make it risky to his life to do so especially when the issue of the commission is for the examination of a plaintiff or a defendant in the suit”.
8. I am not unaware of the explanation to Order XXVI, Rule 1 introduced by the 1976 Amendment of the Code of Civil Procedure by which the Court is not permitted to accept a medical certificate from a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness. In my opinion, the same does not alter the principles of law enunciated in the above-mentioned two decisions. By the aforesaid amendment the Court is now free to accept the medical certificate from a registered practitioner as a evidence of the sickness or infirmity of the person concerned; but in my opinion, it is still necessary for the Court to record its satisfaction as to the existence of the sickness or infirmity of the person concerned after considering the medical certificate and its further satisfaction that because of such sickness or infirmity the witness is unable to come to Court to depose.
9. From the impugned order in the instant case it does not appear that the Learned Munsif after consideration of the medical certificate has satisfied himself as to the illeness and/or infirmity of the defendant and as to her inability to attend the Court because of such illness and/ or infirmity.
10. I am unable to accept the contention of Mr. Banerjee that the statements in the impugned order passed by the Learned Munsif to the effect that he had heard both the sides, perused the petition, the written objection, the affidavit filed and the medical certificate filed and he had considered the prayer, indicates that he has satisfied himself as to the illness and/or infirmity of the defendant and has allowed the prayer of the
defendant to be examined on commission after being satisfied that the defendant is unable to attend the Court because of such illness and/or infirmity. In my judgment the impugned order does not indicate at all such satisfaction of the Learned Munsif or the fact that in allowing the prayer of the defendant he has exercised jurisdiction judicially; on the contrary, it appears from the impugned order that the prayer of the defendant for being examined on commission has been allowed mechanically.
11. I am unable to accept the further contention of Mr. Banerjee that even if the impugned order of the Learned Munsif may not disclose that such satisfaction was arrived by him, the High Court in its revisional application should not interfere with the impugned order of the Learned Munsif allowing the prayer of the defendant to be examined on commission as it would appear from medical certificate filed before the Trial Court that the defendant was unable to attend the Court because of the infirmity indicated in the said certificate. In my opinion, it is not for the High Court in its revisional jurisdiction, but for the Learned Munsif to consider such medical certificate and thereafter to satisfy himself as to the existence of the ailment referred to therein and to decide whether because of the ailments and the infirmity mentioned in the medical certificate the defendant is unable to come to Court to depose. The decision of this Hon’ble Court in the case of Radha Rani Mondal v. Bhima Bharna Dey reported in (1983) 87 Cal, WN 1407 relied upon by Mr. Banerjee, in my view is not at all applicable in the instant case and is clearly distinguishable. In the aforesaid case this Hon’ble Court was considering an order passed by the Learned Munsif accepting a report of the Commissioner. Besides while accepting such report of the Commissioner the Ld. Munsif recorded inter alia in the order that fixed points were correctly taken and principles of survey were complied with.
12. In the result, this application is allowed and the impugned order No. 38 dated
November 9, 1992 passed by the Learned Munsif, 2nd Court at Barasat in Title Suit No. 565 of 1986 is set aside. The Learned Munsif is directed to hear the aforesaid application of the defendant under Order XXVI, Rule 1 of the Code of Civil Procedure afresh and dispose of the application within four weeks from the receipt of the present order after hearing both the parties and considering all materials including medical certificate and the objection of the plaintiff and after recording reasons.
13. At the rehearing of the aforesaid application under Order XXVI, Rule 1 of the Code of Civil Procedure as aforesaid, the defendant will have the liberty to file a supplementary affidavit after serving a copy of the same upon the plaintiff enclosing a fresh medical certificate as to the present condition of health of the defendant and stating as to whether she is still unable to attend the Court for deposing. If such supplementary affidavit is filed the plaintiff will have the liberty to file objection to the same and the Learned Munsif while disposing the application under Order XXIV Rule 1 of the Code of Civil Procedure shall also be taken into consideration such supplementary affidavit and objection to the same, if any.
14. There will be no order as to costs. Let this order be communicated to the Trial Court forthwith.
15. Petition allowed.