Om Prakash Kajaria Vs. Circular Investment Trust Ltd. - Court Judgment

Excerpt:
- orderbiswanath somadder, j.1. heard the learned advocates appearing on behalf of the parties.2. this is an application under article 227 of the constitution of india primarily directed against two orders, being order no. 84, dated 9th april, 2008 and order no. 85, dated 10th april, 2008 both passed by the learned civil judge (senior division), 3rd court at alipore, south 24-parganas in title suit no146 of 1981.3. the petitioner in the instant application is the defendant in respect of the suit pending in the court below.4. by the order impugned, the learned court below was pleased to allow an application under order 26, rule 1 read with section 151 of the code of civil procedure filed by the plaintiff-company for the purpose of examination and cross-examination of the managing director of the plaintiff-company for issuance of a commission.5. the learned advocate appearing on behalf of the petitioner submits that the order impugnsd has been passed by the learned court below on the basis of a medical certificate which was manufactured and fabricated document and that the lady in question, smt. hansi mukherjee was actually a hale and hearty person and was not suffering from any physical disability. the learned advocate for the petitioner thus submits that there was no justification in law for the learned court below to allow the application without giving an opportunity to the defendant to examine the medical practitioner who had issued the medical certificate.6. on the other hand, the learned advocate appearing on behalf of the opposite party herein being the plaintiff in the suit pending in the court below submits that the orders impugned do not suffer from infirmity of reasoning or error of law, which would warrant interference of this court in exercise of its jurisdiction under article 227 of the constitution of india.7. after considering the submissions made by the learned advocates appearing for the parties, i am of the view that the provision of order 26, rule 1 of the code of civil procedure is required to be considered in order to come to a decision as to whether the order impugned is liable to be interfered with by this court. order 26, rule 1 of the code of civil procedure is reproduced hereinbelow:1. cases in which court may issue commission to examine witness.- any court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this code from attending the court or who is from sickness or infirmity unable to attend it:provided that a commission for examination on interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do.explanation: the court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.8. upon a bare perusal of the above provision of law, i find that the legislature has given a wide discretion to the court to issue commission to examine a witness who is exempted under the code of civil procedure from attending the court or who is suffering from sickness or infirmity and therefore unable to attend.9. in the facts of the instant case, as appearing from record, the plaintiff in its application under order 26, rule 1 read with section 151 of the code of civil procedure stated in paragraph 2 that the managing director of the petitioner-company was an old lady of 78 years and had been suffering from various ailments and was presently bedridden. in the written objection filed thereto by the defendant, it appears that in paragraph 5 the defendant has admitted the age of the lady managing director of the plaintiff-company, who is stated to be 78 years old.10. it appears from the order impugned that the learned court below not only considered the medical certificate but also the age of the witness. it is, after taking the age factor into consideration that the learned court below allowed examination and cross-examination of the witness on commission.11. invocation of the provisions of order 26, rule 1 of the code of civil procedure, in my opinion, cannot be limited only in respect of sick persons alone. the expression, 'sickness or infirmity', in my view, makes it absolutely clear that the court has discretion to issue commission to examine witness who suffers from some sort of infirmity, apart from sickness. the advanced age of a witness can well be construed as a. ground of infirmity, on the basis of which the learned court below can pass an order invoking the provision of order 26, rule 1 of the code of civil procedure. in the instant case, the defendant has not disputed the fact that the lady managing director, smt. hansi mukherjee, was seventy eight (78) years old. taking her advanced age into consideration, the learned court below, in my opinion, passed an order which is well within its jurisdiction and the reasons given therein cannot be said to be so perverse or so unreasonable or so illogical, which would warrant interference of this court in exercise of its supervisory jurisdiction under article 227 of the constitution of india.12. for all the reasons stated above, i am of the opinion that the instant application is liable to be dismissed and the same is hereby dismissed. urgent xerox certified copy of this order, if applied for, be supplied to the parties on priority basis.

Judgment:
ORDER

Biswanath Somadder, J.

1. Heard the learned advocates appearing on behalf of the parties.

2. This is an application under Article 227 of the Constitution of India primarily directed against two orders, being Order No. 84, dated 9th April, 2008 and Order No. 85, dated 10th April, 2008 both passed by the learned Civil Judge (Senior Division), 3rd Court at Alipore, South 24-Parganas in Title Suit No146 of 1981.

3. The petitioner in the instant application is the defendant in respect of the suit pending in the Court below.

4. By the order impugned, the learned Court below was pleased to allow an application under Order 26, Rule 1 read with Section 151 of the Code of Civil Procedure filed by the plaintiff-company for the purpose of examination and cross-examination of the Managing Director of the plaintiff-company for issuance of a commission.

5. The learned advocate appearing on behalf of the petitioner submits that the order impugnsd has been passed by the learned Court below on the basis of a medical certificate which was manufactured and fabricated document and that the lady in question, Smt. Hansi Mukherjee was actually a hale and hearty person and was not suffering from any physical disability. The learned advocate for the petitioner thus submits that there was no justification in law for the learned Court below to allow the application without giving an opportunity to the defendant to examine the medical practitioner who had issued the medical certificate.

6. On the other hand, the learned advocate appearing on behalf of the opposite party herein being the plaintiff in the suit pending in the Court below submits that the orders impugned do not suffer from infirmity of reasoning or error of law, which would warrant interference of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India.

7. After considering the submissions made by the learned advocates appearing for the parties, I am of the view that the provision of Order 26, Rule 1 of the Code of Civil Procedure is required to be considered in order to come to a decision as to whether the order impugned is liable to be interfered with by this Court. Order 26, Rule 1 of the Code of Civil Procedure is reproduced hereinbelow:

1. Cases in which Court may issue commission to examine witness.- Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it:

Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.

Explanation: The Court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.

8. Upon a bare perusal of the above provision of law, I find that the legislature has given a wide discretion to the Court to issue commission to examine a witness who is exempted under the Code of Civil Procedure from attending the Court or who is suffering from sickness or infirmity and therefore unable to attend.

9. In the facts of the instant case, as appearing from record, the plaintiff in its application under Order 26, Rule 1 read with Section 151 of the Code of Civil Procedure stated in paragraph 2 that the Managing Director of the petitioner-company was an old lady of 78 years and had been suffering from various ailments and was presently bedridden. In the written objection filed thereto by the defendant, it appears that in paragraph 5 the defendant has admitted the age of the lady Managing Director of the plaintiff-company, who is stated to be 78 years old.

10. It appears from the order impugned that the learned Court below not only considered the medical certificate but also the age of the witness. It is, after taking the age factor into consideration that the learned Court below allowed examination and cross-examination of the witness on commission.

11. Invocation of the provisions of Order 26, Rule 1 of the Code of Civil Procedure, in my opinion, cannot be limited only in respect of sick persons alone. The expression, 'sickness or infirmity', in my view, makes it absolutely clear that the Court has discretion to issue commission to examine witness who suffers from some sort of infirmity, apart from sickness. The advanced age of a witness can well be construed as a. ground of infirmity, on the basis of which the learned Court below can pass an order invoking the provision of Order 26, Rule 1 of the Code of Civil Procedure. In the instant case, the defendant has not disputed the fact that the lady Managing Director, Smt. Hansi Mukherjee, was seventy eight (78) years old. Taking her advanced age into consideration, the learned Court below, in my opinion, passed an order which is well within its jurisdiction and the reasons given therein cannot be said to be so perverse or so unreasonable or so illogical, which would warrant interference of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

12. For all the reasons stated above, I am of the opinion that the instant application is liable to be dismissed and the same is hereby dismissed. Urgent xerox certified copy of this order, if applied for, be supplied to the parties on priority basis.