Dr. Sukhomoy Choudhury vs Ashok Ram and Another

Vikramaditya Prasad, J.—Heard both the sides.

This revision application has been filed against the order dated 1.9.2002 passed by Shri R.P. Deb, Subordinate Judge. Giridih in Title Suit No.

59/97, by which the petition filed under Order 26, Rule 1 of the CPC for examination on commission was rejected.

The ground taken was that the witness is aged about 80 years and suffering from so many disease like heart disease. Hyper tension, diabetes

and other ailments etc. The petition was supported by a medical certificate issued by a registered medical practitioner. It was contended during the

course of argument that on 31.8.2000 when the petitioner was being argued some persons from the side of the defendant No. 2 had assaulted the

plaintiff and, therefore, there is a fear that if they went to the house of Sukhomoy Choudhary to take his evidence on commission, it may create

ugly situation. It was also argued that distance between the Court and the residence of this witness is only one kilometer, therefore, he will have no

difficulty if he comes to Court as a witness.

Learned Court below concluded that the disease with which the witness was suffering are very common disease and it was very easy to procure

such a document/certificate of illness from a medical practitioner. The Court failed to take into consideration that the defendant No. 2 had no

interest in disposal of the case.

So considering all these points the prayer for examination of that witness was disallowed and the case was fixed for his appearance as a witness.

The explanation appended to Order 26 Rule 1 C.P.C. reads as follows :

''The Court may for the purpose of this rule except a certificate purported 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.

From this it is clear that if a medical certificate is filed the Court may accept it on its face value and only when the Court is in some doubt about

the bona fide of such certificate then in that circumstance he could call the medical practitioner who issued such certificate and examine him. In the

instant case nothing of this sort was done and simply the certificate produced on behalf of the witness was rejected. Thus. I think that it is against

the spirit of law.

Learned Counsel for the revisionist argued that a Doctor can practise at his bed and therefore, it is not a ground for rejecting the prayer that he

is a practitioner.

On the contrary the learned Counsel for the Opposite Party filed a prescription issued by the Doctor stating that in the letter head the word

consulting physically is mentioned indicating that he goes to Basanti Devi Goyenka Saba Sadan this letter does not show that when it was printed

and no other document has been produced before the Court. So far question of fear is concerned it is also immaterial and irrelevant and if there is

something like fear then the Court will take proper recourse to law. In this circumstance the impugned order is set aside and this Court permits the

Lower Court to examine the Doctor Sukhomoy Choudhary on commission as a witness. The Court will do it by examining him within a period of

one month on commission.

This civil revision is allowed and accordingly disposed of.