The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1091 of 2024 Gourimani Das Petitioner Mr. A.K. Mohanty, Advocate …. Ananda Chandra Das and others …. Opposite Parties -Versus- Mr. A.P. Bose, Advocate
Legal Reasoning
CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 28.03.2025 Order No. 02. 1. Heard Mr. Mohanty, learned counsel for the petitioner and Mr. Bose, learned counsel for the opposite parties. 2. Instant petition is filed by the petitioner challenging the impugned order dated 27th August, 2024 under Annexure-8 in connection with C.S. No.120/2012-I by learned Civil Judge (Sr. Division), Balasore, whereby, an application under Order 26 Rule 1 CPC dated 1st August, 2024 at Annexure-7 seeking her examination by an Advocate Commissioner in presence of the contesting parties was declined. 3. Mr. Mohanty, learned counsel for the petitioner submits that the petitioner is terminally sick and had a brain stroke and presently suffering from paralysis and hence, she is immobile and therefore, such an application as per Annexure-7 was moved before the learned court below seeking appointment and deputation of an Advocate Commissioner in terms of Order 26 Rule 1 CPC but the same was refused on the premise that there is no mention anywhere about her being bedridden. The further submission is that learned court below declined such examination of the petitioner by a Commission since an earlier application as Page 1 of 4 per Annexure-4 was filed and disposed of. Mr. Mohanty, learned counsel submits that for poor health condition of the petitioner, such examination by a Commission is necessary in the interest of justice. 4. Mr. Bose, learned counsel for the opposite parties, on the other hand, submits that the earlier application on similar ground filed in the month of January, 2024 as per Order 26 Rule 1 CPC was filed but the same was not entertained. The further submission is that a similar application thereafter in month of August, 2024 was filed without any material on record to show that the petitioner is seriously ill, hence, learned court below did not consider such deputation of Advocate Commissioner and it was followed by the impugned order i.e. Annexure-8, which is perfectly justified and calls for no interference. 5. In course of hearing, Mr. Mohanty, learned counsel for the petitioner refers to the medical prescriptions annexed to the application filed under Order 26 Rule 1 CPC at Annexure-7 to contend that the petitioner’s health condition demands such deputation of a Commission. Admittedly, an earlier application with similar ground was moved before the learned court below and it was not entertained. The submission is that a similar ground should not be allowed to be raised at a later point of time for the deputation of a Commission. Such is the submission of Mr. Bose, learned counsel for the opposite parties. The Court is not in agreement with such a contention for the reason that a Commission may also be deputed at a later stage provided a case is made out for the same. The challenge is also to the medical prescriptions at Annexure-7 and according to Mr. Bose, learned counsel for the opposite parties, the same is not sufficient for any such deputation of an Advocate Commissioner. Page 2 of 4 6. Upon a reading of the impugned order as at Annexure-8, the Court finds that the earlier rejection has prevailed upon learned court below for denying such a Commission to be appointed and similarly, with a conclusion that the petitioner is not found to be bedridden or immobile. But, on a bare perusal of the application as at Annexure-7, the Court further finds that the petitioner is claimed to be completely bedridden. Apparently, such is the claim which is based on the medical prescriptions at Annexure-7. Considering the above facts and submissions of learned counsel for the respective parties, the Court reiterate its view that an Advocate Commissioner may be appointed depending on facts and circumstances of a particular case and not to be declined merely for the reason that it was not entertained earlier. At the same time, the conclusion is that a prima facie case is to be made out for such deputation of the Commission. Under the above circumstances and recording the submission of Mr. Mohanty, learned counsel for the petitioner and serious objection from Mr. Bose, learned counsel for opposite parties and absence of any specific reason with a detailed speaking order by learned court below, the Court is of the view that the need for such appointment and deputation of Commission needs a revisit with an opportunity to both the sides to claim and oppose. In other words, the Court is inclined to direct the petitioner to submit all such medical papers to show and satisfy the learned court below regarding the health condition of the petitioner while demanding such Commission to be deputed with a proper hearing provided to the opposite parties challenging the same as such a course of action would serve the purpose and meet the ends of justice. 7. Accordingly, it is ordered. Page 3 of 4 8. In the result, the CMP is disposed with a direction to the petitioner to furnish all such medical papers in respect of the health condition of the petitioner seeking appointment of an Advocate Commissioner for her examination and upon receiving the same and objection from the opposite parties, the application under Order 26 Rule 1 CPC shall be freshly reexamined followed by an order at the earliest preferably within a period of four weeks from the date of receipt of a copy of this order. The Court further directs that learned court below shall make an endeavor to ensure early disposal of the suit, which is pending since 2012 and if it is possible, at any meantime, within a period of six months from the date of receipt of a copy of this order. 9. In the circumstances, there is no order as to costs. 10. Urgent copy of this order be issued as per rules. Rojina (R.K.Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 03-Apr-2025 18:37:54 Page 4 of 4