The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 06-May-2024 19:13:21 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 348 of 2024 Nrusingh Charan Sahoo Petitioner .... Mr. Sidharth Shankar Padhy, Advocate -versus- Sashilata Sahoo and others …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 02.05.2024 1. 1. This matter is taken up through hybrid mode. 2. Order dated 14th March, 2024 (Annexure-1) passed by learned Civil Judge (Senior Division), 2nd Court, Cuttack in CS No.98 of 2017 is under challenge in this CMP, whereby an application filed by the Plaintiff/Petitioner to examine one Sri Shankar Das on commission, has been rejected. 3. Mr. Padhy, learned counsel for the Petitioner submits that the suit has been filed for declaration of right, title, interest and for confirmation of possession. PWs-1 and 2 have already been examined in the case. Plaintiff/PW-1 in his cross-examination has stated that he had sent one Sri Shankar Das of Harispur to the office of the Sub-Registrar on 30th March, 1978, i.e., on the date of preparation of the sale deed. On the date of registration of the sale deed, i.e., on 31st March, 1978 he had also sent said Sri Shankar Das to the office of the Sub-Registrar. Said Sri Das can tell the recital of the sale deed as well as about the execution, as he was present at the time of preparation as well as registration of Page 1 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 06-May-2024 19:13:21 // 2 // the sale deed. Thus, said Sri Shankar Das is a vital witness to the suit. Since he is aged about eighty years and is suffering from geriatric diseases, he is not in a position to come to the Court to adduce evidence. As such, an application under Order XXVI Rule 1 CPC was filed for appointment of a Commission to examine Sri Shankar Das. 3.1 Mr. Padhy, learned counsel further relied upon a decision of this Court in the case of T.Nirmala Vs. T.Sravani and others, reported in 2023 (I) OLR 703, wherein, at para-5, it is held as under:- “5. Order XXVI Rule 1 CPC deals with cases where Commission may be issued to examine person/witness. In cases where a person being a resident within the local limits of the jurisdiction of the Court is exempted under this Code to attend Court or for the reason of his/her sickness or infirmity is unable to attend the Court, may be examined by a Commission, if so directed by the Court. Explanation to Rule 1 provides that for the purpose of the said Rule certificate signed by a registered medical practitioner as evidence of sickness or infirmity may be accepted without calling the medical practitioner as a witness. Rule 4-A to Order XXVI was introduced by Section 29 of Amending Act, 1999 (w.e.f. 1st July 2002) enlarging the scope of Rule 1, which provides that notwithstanding anything contained in the Rules under Order XXVI, the Court in the interest of justice or for the expeditious disposal of the case or for any other reason issue Commission in any suit for examination of any person residing within local limits of its jurisdiction and evidence so recorded shall be read in evidence in the said suit. Thus, the discretion of the Court to issue Commission for examination of witness is no more confined to the requirements of Rule 1 only. It has been further enlarged by way of the aforesaid amendment. Further, Order XVIII Rule 4(4) C.P.C. provides that the Commissioner may record remarks as it thinks material with regard to the demeanour of the witness under examination. In addition to the above, Rule 19 of Order XVIII C.P.C., which starts with a non-obstante clause provides that notwithstanding Page 2 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 06-May-2024 19:13:21 // 3 // their statements anything contained in Rules provided under Order XVIII relating to hearing of the suit and examination of witness, the Court may, instead of examining the witnesses in open to be recorded on Court, direct Commission under Rule 4-A of Order XXVI. Hence, it confers a wide discretion of the Court to record the statement/evidence of a witness by issuing Commission. In the case of Salem Advocate Bar Association (supra), the Hon’ble Supreme Court has made it clear that the aim and object of the legislature, which has by amending the Code provided for recording evidence by the Commissioner for saving the Court’s time taken for the said purpose, cannot be defeated merely on the ground that the Court would be deprived of watching the demeanour of the witnesses. Thus, a narrow interpretation of the discretion of the Court to issue Commission to examine witness should always be avoided, which would frustrate the object of the the provisions as stated above more particularly amendment to Code. Of course, in some cases, which are complex in nature, the prayer for recording evidence by the Commissioner may be declined by the Court. Further, the Commissioner may record remarks as it thinks material with regard to the demeanour of the witness under examination. Thus, the Court while exercising its discretion in the matter of issuance of a Commission for examination of a witness, must, therefore, keep in mind the aforesaid principle in mind.” Learned trial Court while considering the application, did not at all take the aforesaid case law into consideration. After insertion of Order XVIII Rule 4 (4) and Order XXVI Rule 4-A CPC in 2002 amendment, the discretion of the Court for examination of a witness on commission has been widened. In order to prevent the wastage of judicial time, such a procedure should be adopted by the Court as and when felt necessary. In the instant case, learned trial Court rejected the petition holding that the Petitioner has not filed any medical document in support of the ailments of Sri Shankar Das. An observation is also made in the impugned order Page 3 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 06-May-2024 19:13:21 // 4 // to the effect that said Sri Das is not a vital witness and his evidence is not also vital for just adjudication of the suit. Such observations are contrary to law and hence the impugned order is liable to be set aside. He further prays that a direction should be made to examine Sri Shankar Das on commission. 4. Taking note of the submission made by learned counsel for the Petitioner and on perusal of record, it appears that learned trial Court was not satisfied with the ground taken in the petition under Order XXVI Rule 1 CPC for examination of Sri Shankar Das on commission. Admittedly, Sri Das is a senior citizen of more than eighty years. It is stated in the petition that he is suffering from different old-age diseases. It is very common that a period at the age of eighty years might be suffering from various geriatric diseases. Further, learned trial Court rejected the petition on the ground that evidence of Sri Shankar Das is not vital for adjudication of the suit. Such an observation should not have been made while adjudicating a petition under Order XXVI Rule 1 CPC, as the Plaintiff has already stated in his cross-examination that Sri Shankar Das was deputed by the Plaintiff to oversee the preparation and execution of the sale deed. It is also stated that he is acquainted with the recitals of the sale deed. 4.1 It further appears that learned trial Court has not taken into consideration the ratio decided in the case of T.Nirmala (supra). In that view of the matter, this Court feels that the petition filed under Order XXVI Rule 1 CPC requires fresh consideration. Page 4 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 06-May-2024 19:13:21 // 5 // 5. In view of the above, impugned order dated 14th March, 2024 (Annexure-1) is set aside and the matter is remitted to learned trial Court for fresh adjudication of the petition filed under Order XXVI Rule 1 CPC by the Plaintiff/Petitioner for examination of Sri Shankar Das on commission keeping in mind the observations made herein above. 6. The CMP is disposed of accordingly. 7. Since the CMP is disposed of without issuing notice to Opposite Parties, they are at liberty to seek for variation of this order, if they feel aggrieved. Issue urgent certified copy of the order on proper application. s.s.satapathy (K.R. Mohapatra) Judge Page 5 of 5