Shyamnath Sharma v. Kripal Singh Bedi

Bhushan Dwivedi. The said land was transferred by them to Smt. Asharani Sharma widow of late Vidyaratan Sharma by executing a sale deed dated 12.08.1999. She continued to be the absolute owner of the property in dispute. After purchase of the said land, khasra number of the said land was changed. Smt. Asharani expired on 5.2.2005 and after her death, the petitioner / plaintiff who was the only nephew and was adopted son, continued to be the absolute owner of the property in dispute. The respondents being defendants have started interfering in possession of the land of the petitioner / plaintiff and being aggrieved by the action of the respondents / defendants, in the compelling circumstances, the petitioner has file the civil suit against the defendants.

3. On notice being served, the respondents appeared before the Court below and submitted their written statements separately and denied the plaint averments. On 10.9.2007 issues were framed by the trial Court. The evidence of the plaintiff has already been closed long back. During the defendants' evidence, defendants no. 5 Rajesh Wadhwani was examined by the Trial Court and thereafter, he was cross-examined by the petitioner's counsel but due to paucity of time, the case was adjourned and he could not be cross-examined. Thereafter, an application under Order 26 Rule 1 of CPC was filed by defendant no. 5 Rajesh Wadhwani seeking permission to examine himself on commission by assigning reasons therein that on account of his ailment, he is unable to attend the Court proceedings. By the impugned order, the Trial Court has allowed the said application which has been put to challenge by the plaintiff / petitioner by filing this petition.

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4. It is argued by learned Senior counsel for the petitioner that the order passed by learned Trial Court is unjust, improper and deserves to be set-aside. Respondent no. 5 has not filed any document in support of his illness. The Trial court has also not considered the relevant provisions of Order 26 Rule 1 of CPC and in a casual manner, has allowed the application. Learned Senior Advocate relying upon the order passed in M.P.No.3736/2019 parties being Deep Mudgal and another vs. Vinod Kumar Sharma (Mudgal) and others decided on 26.7.2019 has contended that the application under Order 26 Rule 1 CPC should not be allowed casually.

5. Counsel appearing on behalf of respondent no.1 has vehemently opposed the aforesaid contentions and argued in support of the impugned order. It is submitted that in fact, two civil suits have been filed by the petitioner / plaintiff before the Trial Court. In one of the civil suits, the permission as sought has already been accorded by the learned Trial Court and has drawn attention of this Court to the order sheet of the trial Court dated 7.4.2022 passed in Civil Suit No.244-A/06. It is averred that once such an application with regard to the same witness has been allowed by the Trial Court considering the medical documents, the Trial Court has not committed any illegality by allowing the another application filed for the same purpose. He has also drawn attention of this Court to the order sheets of the Trial court to show that the medical documents have already been placed on record on earlier occasion, therefore, he has prayed for dismissal of the petition by affirming the order passed by the Trial Court.

6. Heard learned counsel for the rival parties and perused the record

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as well as the impugned order.

7. Record reveals that during pendency of the civil suit, at the time of recording of defendants' evidence, an application under Order 26 Rule 1 of CPC has been filed by defendant no. 5. Relevant provisions of Order 26 Rule 1 of CPC are as under :-

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."

8. On perusal of aforesaid provisions, it is apparently clear that the Court can accord such permission for recording of evidence through Commission in exceptional circumstance. Such permission should not be granted in a routine or casual manner. If the application filed under Order 26 Rule 1 of CPC by the defendant no. 5 is seen, the reasons assigned for recording of the statement on commission is that defendant no. 5 is not well and suffering from ailment. No medical documents along with the application were annexed as reflected from the application vide Annexure- P/6.

9. Although, I.A. No.22751/2024 has been filed by the counsel

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appearing for respondent no.1 for taking the certain medical documents on record, but these documents are the subsequent to filing of the application and the same cannot be considered being part of that application. The application under Order 26 Rule 1 of CPC has been considered and allowed by the trial Court in a casual manner without considering the fact that such application for recording of evidence through commission should be allowed in exceptional circumstanceslooking to urgency and need in the matter.

10. The order sheets which have been shown by learned counsel for the respondent to substantiate his arguments that similar permission was granted in another civil suit, does not fortify the case of the respondent because from the order sheet dated 7.4.2022 it reveals that ी चौधर अिधव ा को हाट अटैक आया था कंतु डॉ टर के ारा उ ह इस संबंध म या सलाह द गई है ऐसे त य उ रदाता ितवाद के ान म नह है, which goes to show that the counsel engaged by the defendant before the court below was not well. This cannot be a reason to accord permission for recording of evidence through commission. There is nothing on record to show that defendant no. 5 was not well on the date when the said application was filed.

11. A Co-ordinate Bench of this Court in M.P. No.3736/2019 has considered the similar proposition and has held as under :-

"It is not the case of the petitioner that the witness is completely bed- ridden and is not able to move at all. Merely because a witness is suffering from certain ailments would not mean that a Commission should be appointed for examining the said witness. If a witness is examined by the Commission, then

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the Court would be deprived from observing the demeanour of the witness and, therefore, the Commission should be appointed for examination of a witness only in exceptional case and not in a routine manner. Since the petitioners have failed to point out any exceptional circumstance warranting the appointment of the Commissioner for examination of Smt. Kalpna Mudgal as a defence witness, therefore, this Court is of the considered opinion that no mistake has been committed by the Trial Court by rejecting the application. "

12. If aforesaid analogy is applied in the present case, as no reasons have been assigned in the application coupled with the fact that the application is not supported by any medical documents, no permission should have been granted by the Trial Court for recording of the evidence based upon commission.

13. Under these circumstances, the impugned order granting permission for recording of evidence to defendant no. 5 through commission, is unsustainable and it is hereby set-aside.

14. Record further indicates that 19 opportunities have already been granted to the defendants to complete their evidence but by one reason or other, the case is being got adjourned by them. Therefore, the Trial Court is directed to expedite the proceeding of the trial Court and complete the defendants' evidence within short span of time without granting unnecessary adjournment in the matter.

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(VISHAL MISHRA)

JUDGE

15. With the aforesaid, Misc. Petition is allowed.

16. A copy of this order be sent to the concerned Trial Court for information and its compliance.

JP

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