The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 1574 OF 2023 Sayanha Swati Petitioner Mr. Bibekananda Bhuyan, Advocate …. -versus- State of Odisha and others ….
Legal Reasoning
Opp. Parties Mr. A.K. Mishra, Additional Government Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 20.12.2023 1. 1. This matter is taken up through hybrid mode. 2. Order dated 11th December, 2023 (Annexure-7) passed by learned Senior Civil Judge, Bhubaneswar in T.S. No.173 of 2000 is under challenge in this CMP, whereby an application filed by the Plaintiff-Petitioner under Order 26 Rule 1 C.P.C. for her examination on Commission has been rejected. 3. Mr. Bhuyan, learned counsel for the Petitioner submits that T.S. No.173 of 2000 was dismissed for non-prosecution. The Plaintiff-Petitioner filed CMA No.5 of 2010 under Order IX Rule 9 C.P.C., which was allowed vide order dated 23rd November, 2023 with the following order: “The Civil Misc. Application is allowed. The order dated 04.03.2010 passed in TS 173/2000 is hereby set aside and the said suit is restored to its original position as on 04.03.2010 before passing of the impugned order. The petitioner is directed to adduce evidence from her side without seeking any adjournments. Failing to comply the above direction, the above setting aside order will be recalled automatically. Put up on 04.12.2023 Page 1 of 5 // 2 // for hearing from side of petitioner/plaintiff without fail.” Accordingly, the suit was restored. But, before adducing evidence in the suit, learned counsel appearing for the Plaintiff- Petitioner felt it expedient to amend the plaint. Accordingly, an application under Order VI Rule 17 C.P.C. was filed, which was dismissed on 7th December, 2023 and the Plaintiff-Petitioner was directed to adduce evidence positively on 11th December, 2023 without fail. But, on the said date, the Plaintiff-Petitioner filed an application under Order XXVI Rule 1 C.P.C. enclosing a medical prescription in support of her illness stating that she is unable to walk and is not in a position to appear before the Court. Learned trial Court without taking into consideration the provision under Order XXVI Rule 4-A read with Rule 4(4) and Rule 19 of Order XVIII C.P.C. rejected the petition. 3.1 Mr. Bhuyan, learned counsel for the Petitioner further submits that the Plaintiff-Petitioner has already filed her evidence in affidavit, but she is not in a position to come to the Court as she is suffering from lumber spondylitis and she is also advised complete bed rest. A prescription of her treating physician was also annexed to the petition under Order XXVI Rule 1 C.P.C. Learned trial Court without taking note of the same rejected the petition holding that in view of the order passed while restoring the plaint as well as previous conduct of the Plaintiff, she is not entitled to the relief prayed for. He also relied upon a judgment of this Court in CMP No. 1138 of 2022 (T. Nirmala –v- T. Sravani and others) disposed of on 31st January, 2023, wherein it is held as under: Page 2 of 5 // 3 // issued “5. Order XXVI Rule 1 CPC deals with cases to examine where Commission may be 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 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 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 the Court record to of Page 3 of 5 // 4 // 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 the recording 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 issuance of a the matter of Commission for examination of a witness, must, therefore, keep in mind the aforesaid principle in mind.” evidence by for in He, therefore, submits that learned trial Court has committed an error in dismissing the application under Order XXVI Rule 1 C.P.C. 4. Taking into consideration the submission made by learned counsel for the Petitioner and on perusal of the case record, it appears that learned trial Court has taken exception to the conduct of the Plaintiff-Petitioner as well as relied upon the order dated 23rd November, 2023 passed in CMA No.5 of 2010 filed for restoration of the suit. Admittedly, the Plaintiff- Petitioner did not adduce any evidence on the date fixed. She also filed an application under Order VI Rule 17 C.P.C., which was dismissed on merit on 7th December, 2023. Thereafter, the Plaintiff-Petitioner was directed to adduce evidence in the suit on 11th December, 2023 without fail. It appears that learned trial Court has not given any weightage to the medical prescription of treating physician of the Plaintiff. In view of the Page 4 of 5 // 5 // discussion made in T. Nirmala (supra), more particularly in view of the provision under Order XVIII Rule 4(4) read with Order XXVI Rule 4(A) C.P.C., the petition under Order XXVI Rule 1 C.P.C. requires fresh consideration, more particularly when learned trial Court has not taken into consideration the aforesaid provision while adjudicating the petition. It is worthwhile to mention here that no objection to the said petition under Order XXVI Rule 1 C.P.C. was filed as stated by Mr. Bhuyan, learned counsel for the Petitioner. 5. In view of the above, the impugned order under Annexure-7 is set aside and the matter is remitted back to learned trial Court for fresh consideration of the petition under Order XXVI Rule 1 C.P.C. keeping in mind the observation made herein above and the case law cited in T. Nirmala (supra). 6. With the aforesaid observation and direction, the CMP is disposed of. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge bks Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Dec-2023 11:12:59 Page 5 of 5