The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Jan-2024 11:58:50 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1192 OF 2023 Sundari Behera …. Petitioner Mr. Niranjan Prasad Patra, Advocate Gandharba @ Parsuram Behera and others …. Opp. Parties -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 09.01.2024 2. 1. This matter is taken up through hybrid mode. In order dated 15th December, 2023, the date of posting 2. the matter is advertently mentioned as 9th January, 2023 instead of 9th January, 2024. The same be corrected as 9th January, 2024. 3. Order dated 8th August, 2023 (Annexure-7) passed by learned Civil Judge (Senior Division), Salipur in C.S. No.95 of 2016 is under challenge in this CMP, whereby an application filed by Defendant Nos.2 for examination of Defendant No.12 by a pleader commissioner, has been dismissed. 4. It is submitted by Mr. Patra, learned counsel that Defendant No.12-Petitioner is bedridden as she has spinal injury. She was advised complete bed rest. Prescriptions and X-ray report etc. in support of the same were also filed along with the petition under Order XXVI Rule 1 CPC, but learned trial Court holding that the said medical documents of Defendant No.12 do not reflect her present medical condition, rejected the petition. 5. It is his submission that in view of the provisions under Order XVIII Rule 4(4) read with Rule 19 CPC as well as Order Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Jan-2024 11:58:50 // 2 // XXVI Rule 1 read with Rule 4(A) CPC clearly disclose that in order to avoid wastage of judicial time, commission should be appointed for examination of witness, if it is for a just cause. In the instant case, there is no dispute to the effect that Defendant No.12 is suffering from spinal injury and has been advised complete bed rest. Prescriptions and X-ray report were also filed in support of the same. In spite of the above, the petition under Order XXVI Rule 1 CPC has been rejected. He also relied upon the case law in T. Nirmla –v- T. Sravani and others (in CMP No.1138 of 2022, disposed of on 31st January, 2023), wherein discussing the aforesaid provision and case law, this Court 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 Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Jan-2024 11:58:50 // 3 // 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 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.” Learned trial Court has not dealt with the matter in the light of the ratio decided in the aforesaid case. Hence, he prays for setting aside the impugned order under Annexure-7 and to remit the matter to learned Civil Judge (Senior Division), Salipur for fresh adjudication of the petition under Order XXVI Rule 1 CPC. 6. Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that learned trial Court raised doubt with regard to present physical condition of Defendant No.12-Petitioner to attend the Court for adducing evidence. As observed by learned trial Court, the medical documents do not disclose the present physical condition of Defendant No.12 to attend the Court to adduce evidence. The petition under Order XXVI Rule 1 CPC was not Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Jan-2024 11:58:50 // 4 // considered in the light of decision in the case of T. Nirmala (supra). In that view of the matter, this Court feels that the matter requires fresh consideration. 7. Accordingly, the impugned order under Annexure-7 is set aside and the matter is remitted to learned trial Court for fresh adjudication of the petition under Order XXVI Rule 1 CPC keeping in mid the ratio decided in T. Nirmala (supra) and providing opportunity of hearing to the parties concerned. 8. With the aforesaid observation and direction, the CMP is disposed of. 9. Since the CMP is disposed of without issuing notice to the Plaintiff-Opposite Party No.1, he is at liberty to seek for variation of this order, if he feels aggrieved. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4