The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 400 OF 2024 Sayanha Swati Petitioner Mr. Bibekananda Bhuyan, Advocate …. State of Odisha and others …. Opp. Parties -versus-
Legal Reasoning
Mr. A.K. Mishra, Additional Government Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 29.04.2024 1. 1. 2. This matter is taken up through hybrid mode. Order dated 6th April, 2024 (Annexure5) passed by learned Civil Judge (Senior Division), Bhubaneswar in T.S. No.173 of 2000 is under challenge in this CMP, whereby an application filed by the Plaintiff-Petitioner under Order XXVI Rule 1 C.P.C. to examine a witness, namely, Shatrughna Singh of Puri on commission, has been rejected. 3. Mr. Bhuyan, learned counsel for the Petitioner submits that the Plaintiff has already examined herself as a witness in the suit. Sri Shatrughna Singh, son of Rama Chandra Singh, is also a witness on behalf of the Plaintiff, who stays at Puri and is a senior citizen of more than 70 years and was suffering from different ailments including COPD. He was also advised complete bed rest for the period which covers the date of his examination as a witness. Hence, an application was filed under Order XXVI Rule 1 C.P.C. to examine him on commission. Objection to the same was also filed by the Defendants-State stating that there is nothing on record to show that the witness is Page 1 of 5 // 2 // completely bed ridden and is not in a condition to come to the Court to adduce evidence. Ailment as shown in the prescription is temporary in nature. Considering the same, application filed under Order XXVI Rule 1 C.P.C. has been rejected. 4. Mr. Bhuyan, learned counsel for the Petitioner also relied upon the decision in the case of T. Nirmala –v- T. Sravani and others, reported in 2023 (1) OLR 703, wherein 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 anything contained in Rules provided under Order XVIII relating to hearing of the suit and examination of witness, the Page 2 of 5 // 3 // Court may, instead of examining the witnesses in open Court, direct their statements to be recorded on 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 provisions as stated above more particularly the 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.” It is, thus, submitted that without considering the guidelines provided in T. Nirmala (supra), the petition under Order XXVI Rule 1 C.P.C. has been rejected. 5. Mr. Bhuyan, learned counsel for Petitioner further submits that learned trial Court did not look into the prescription of the treating physician properly in which the witness of the Petitioner has been advised complete bed rest for eight weeks, which covers the date of examination as witness. He, therefore, submits that learned trial Court should have allowed the petition to avoid further delay in the matter. Page 3 of 5 // 4 // 6. Mr. Mishra, learned Additional Government Advocate defending the impugned order submits that advice of complete bed rest of the Petitioner will expire on 25th May, 2024. After that, the witness may appear in person and adduce evidence so that the Court can mark the demeanour of the witness and consider the same while recording the evidence. He, therefore, submits that learned trial Court has committed no error in rejecting the petition under Order XXVI Rule 1 C.P.C. 7. Taking into consideration the submission made by learned counsel for the parties and on perusal of the record, it appears that witness of the Petitioner, namely, Shatrughna Singh, is aged about 70 years and was suffering from different ailments including COPD. He was also advised complete bed rest for a period of eight weeks from 10th March, 2014. In order to prevent wastage of the judicial time, Rule 4(4) has been inserted to Order XVIII C.P.C. Further, a new rule has been inserted as Rule 4-A to Order XXVI C.P.C.. Taking into consideration the same, this Court in T. Nirmala (supra) has laid down the guidelines to consider an application under Order XXVI Rule 1 C.P.C. 8. On perusal of the impugned order, it appears that learned trial Court misread the prescription of the witness, namely, Shatrughna Singh, wherein he has been advised complete bed rest for eight weeks with effect from 10th March, 2024. Thus, finding of learned trial Court to the effect that prescription of the witness does not show that the witness cannot move and completely bed ridden, is not correct.It also appears that learned trial Court has erroneously recorded the name of the witness. In Page 4 of 5 // 5 // that view of the matter, this Court is of the considered opinion that the impugned order under Annexure-5 has been passed without proper application of the judicial mind. 9. Accordingly, the impugned order under Annexure-5 is set aside and the matter is remitted to learned trial Court for fresh consideration of the petition under Order XXVI Rule 1 C.P.C. as expeditiously as possible preferably within a period of one week from the date of production of certified copy of this order, giving opportunity of hearing to the parties concerned keeping in mind the observation made in T. Nirmala (supra). Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Apr-2024 18:38:30 Page 5 of 5