Sri Prashanta Kumar Jena vs Sri P.C. Das Adhikary And Anr. on 14 November, 2007

Orissa High Court
Sri Prashanta Kumar Jena vs Sri P.C. Das Adhikary And Anr. on 14 November, 2007
Equivalent citations: 105 (2008) CLT 727
Author: I Mohanty
Bench: I Mohanty


ORDER

I. Mohanty, J.

1. In the present writ application, the Petitioner has sought to challenge the Order Dated 28.11.2006 (Annexure-3) passed by the Addl. Civil Judge (Sr. Divn.), Balasore in T.S. No. 306 of 1990-1. By the said order, Learned Civil Judge has been pleased to allow a petition filed by Opp. Party No. 1 (Defendant No. 1) seeking “to record his evidence by a Commission.

2. Learned Counsel or the Petitioner submits that in the petition filed by Opp. Party No. 1 for deputation of a Commission, except making some bald statements, no documentary evidence was produced before the Court along with the petition filed under Order 26, Rule 1 C.P.C. Learned Counsel draws my attention to the objection filed by his client in which he had specifically pointed out that the Court should not have considered that application since no medical certificate was attached to it showing that he was ailing or not. He further submits that though the age of Defendant No. 1 was 65 at that point of time, this by itself was no reason as to why the Defendant could not come to Court to give evidence. In other words, Learned Counsel for the Petitioner submits that the age alone cannot be the criterion for consideration of a petition to depute a Commission. Learned Counsel for the Petitioner in support of his contention placed reliance on a decision of this Court in the case of Manoharlal Arora v. Atma Prakash Arora and Ors. 49(1980) CLT 233.

3. Learned Counsel for the Opp. Parties submits that Defendant No. 1 is of advanced age and being ill filed a petition under Order 26, Rule 1 CPC and no prejudice will be caused to the Petitioner, inasmuch as, if the Commission is appointed, Learned Counsel for the Petitioner-Plaintiff would also be present and would cross-examine Defendant No. 1. Therefore, no prejudice will be caused to them and in any event, Opp. Party No. 1 has been directed to deposit the cost of such Commission.

4. In the Judgment relied upon by the Learned Counsel for the petition referred to above, this Court laid down the principle that though the power to issue a commission has been conferred under Section 75 of the Code of Civil Procedure, it is nevertheless “discretionary” and is subject to the conditions and limitation as have been prescribed under the Rules, namely, Order 26.

5. The above decision also lays down the principle that the normal rule is that a commission should not be issued for examination of a witness who can be ordered to attend in person to give evidence in the Court, unless there are “special reason” for it like serious illness or other kinds of ailment or infirmity or similar other grounds for which a person cannot be ordered to attend Court to give his evidence. It is, thereof, well settled that there can be no insistence, as of right by a party to have a commission issued for examination of a witness merely because he undertakes to bear the cost of such commission. In view of the aforesaid position of law and on consideration of the contentions advanced by the Learned Counsel for both the parties, I am of the view that in the absence of any documentary evidence to substantiate the illness of Defendant No. 1, the application filed by Defendant No. 1 under Order 26, Rule 1 C.P.C. merits no consideration, especially when the objection has been raised by the present Petitioner to the effect that Defendant No. 1 had not filed any medical certificate in support of his claim.

6. On a perusal of the impugned order, it is apparent that the Court had not taken into consideration the objections raised and had not given finding on the same. Therefore, the Order Dated 28.11.2006 passed in T.S. No. 306 of 1990-1 on a Petition filed under Order 26, Rule 1 CPC is quashed.

The writ application is allowed.

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