Fahim vs Surjit Kaur and Another

Paramjeet Singh, J.—Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 03.10.2013 (Annexure P/4) passed by learned Addl. Civil Judge (Senior Division), Nuh whereby application filed by the respondents under Order 26 Rule 4 of the CPC for appointment of commission to examine witness, has been allowed. I have heard learned counsel for the petitioner and perused the record.

Learned counsel for the petitioner contends that the trial Court has not properly considered the legal provisions of Order 26 Rule 4 C.P.C. as per which local commissioner cannot be appointed for recording the statement of any witness on medical ground. Learned counsel further contended that since the petitioner-plaintiff has to go to Delhi from Nuh along with his counsel, he will have to bear unnecessary expenses, the petitioner is entitled to expenses for his counsel as well as himself who will be accompanying the commission for cross examination.

I have considered the contentions of the learned counsel for the petitioner.

Order 26 Rule 4 C.P.C. reads as under:-

Persons for whose examination commission may issue-

(1) Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of-

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined in court; and

(c) any person in the service of the Government who cannot, in the opinion of the court, attend without detriment to the public service:

Provided that where under rule 19 of Order XVI, a person cannot be ordered to attend a court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice:

Provided further that commission for examination of such person on interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do.

(2) Such commission may be issued to any court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the court issuing the commission may appoint.

(3) The court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate court.

In the present case, the Court has come to the conclusion that defendant-S.K. Khosla is suffering from heart disease and has undergone surgery twice, as such, keeping in view the medical ground, the local commissioner was appointed to cross examine the witness.

In view of this, I do not find any illegality or perversity in the impugned order. Dismissed. However, in view of provisions of Order 26 C.P.C. read with Part-C, Chapter 5, Volume I of the Punjab and Haryana High Court Rules and Orders, the trial Court shall ensure payment of compensation to the petitioner and his counsel for examination of witness by the local commissioner.