Purna Chandra Das vs Haramani Satpathy And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 27th June, 2023 (Annexure-4) passed by learned 3rd Additional Senior Civil Judge, Balasore in C.S. No. 254 of 2017 is under challenge in this CMP, whereby an application filed by the Defendant-Petitioner to be examined on Commission under Order XXVI Rule 4-A C.P.C. has been rejected.

Mr. Dasmohapatra, learned counsel submits that the Petitioner is a senior citizen of 70 years. He has several ailments including heart disease. The Court of learned 3rd Additional Senior Civil Judge, Balasore is at the second floor of the Court complex. There is no provision of elevator in the said Court Complex. Thus, the Petitioner is not in a position to climb the stairs to second floor to adduce evidence in support of his case. 3.1 It is his submission that when virtual examination of the witnesses is being allowed by the Courts and in view of introduction of Rule-19 to Order XVIII C.P.C., there is no difficulty in examining the Petitioner on Commission. The Commission can also record the demeanor of the parties. It is also submitted that this Court by order dated 31st January, 2023 in CMP No.1138 of 2022 (T. Nirmala –v- T. Sravani and others) has considered the similar nature of application and allowed the party to be examined through a Commission on submission of fresh medical certificate. Although the case law was pressed into service by learned counsel for the Petitioner, but learned trial Court ignoring the same has passed the impugned order by rejecting the petition. Hence, this CMP has been filed.

Taking into consideration the submission of learned counsel for the Petitioner and on perusal of the impugned order under Annexure-4, it appears that learned trial Court has taken exception to the submission that the Petitioner is not 70 years old, as alleged, rather he was only 63 years old and no document in support of his averment was filed. Learned trial Court, however, did not discuss the scope and ambit of Order XXVI Rule 4-A read with Order XVIII Rule 19 C.P.C., while considering the petition.

In view of the above, this Court is of the considered opinion that learned trial Court should consider the petition under Order XXVI Rule 4-A C.P.C. keeping in mind the amendment introduced to the Code of Civil Procedure for examination of the witnesses on Commission and the observation made in T. Nirmala (supra).

Accordingly, the impugned order under Annexure-4 is set aside and the matter is remitted back to learned 3rd Additional Senior Civil Judge, Balasore to consider the petition under Order XXVI Rule 4-A C.P.C. afresh giving opportunity of hearing to the parties concerned.

The CMP is accordingly disposed of.

Since the CMP is disposed of without issuing notice to the Opposite Parties, they are at liberty to seek for variation of this order, if they feel aggrieved.

Urgent certified copy of this order be granted on proper application. \

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