Smt. Krishna Das vs Santana Modak and Another

Dipankar Datta, J.—The Petitioner in this application under Article 227 of the Constitution of India dated August 19, 2010 is the Plaintiff in Title Suit No. 138 of 2000, pending on the file of the 1st Court of Civil Judge (Senior Division) at Chinsukah, Hooghly. The suit is for specific performance of a contract and injunction. The Defendants in the suit are contesting it by filing written statement.

The stage for recording evidence having reached, the Petitioner filed a petition dated June 2, 2010 under Order 26 Rule 1, CPC (hereafter the Code) read with Section 151 thereof. On the ground of her illness, the Petitioner prayed before the Trial Court for appointment of a learned advocate as commissioner to record her oral evidence.

The petition was taken up for consideration by the Trial Court on July 6, 2010. The plea of the Petitioner that she was ill and that it is practically impossible for her to remain personally present in Court and depose before it was disbelieved. The petition was thus dismissed with costs of Rs. 300/-by order No. 60 dated July 6, 2010. This order forms the subject matter of challenge in the present application.

A learned judge of this Court considered this application on November 24, 2010. Two supplementary affidavits filed by the Petitioner were directed to be retained with the records and to be treated as part of this application. The opposite parties were granted liberty to file affidavit-in-opposition to this application as well as the supplementary affidavits. On exchange of affidavits, this application has been listed for final consideration before me.

Mr. Roy Chowdhury, learned senior advocate appearing for the Petitioner invited my attention to the several prescriptions issued by the physicians who attended the Petitioner for her treatment as well as the clinical examination reports annexed to the application as well as the supplementary affidavits and sought to impress me that the Petitioner was indeed ill for which the petition under Order 26 Rule 1 of the Code was preferred. The Trial Court, according to him, committed gross error of jurisdiction in not believing the plea of the Petitioner and in proceeding to dismiss her petition. To counter the point taken by the opposite parties in their affidavit-in-opposition that the Petitioner having come to Kolkata all the way from Chisurah for swearing the affidavit accompanying this application and, therefore, the plea of illness is absolutely false, he submitted that that fact alone would not be sufficient to hold against the Petitioner in view of her subsequent deteriorating health condition. However, by referring to Order 18 Rule 4 of the Code, as amended, it was contended by him that the Petitioner may now be permitted to file her affidavit evidence and the Trial Court may be directed to have her oral evidence on cross-examination recorded on commission.

Mr. Das, learned advocate for the opposite parties vehemently opposed the application. According to him, the Court building at Chinsurah is at a distance of 5 km. from the Petitioner''s residence. Although the Petitioner was not in a position to attend the Court at Chinsurah, she had come all the way from Chinsurah to Kolkata to swear the affidavit accompanying this application before the Commissioner of Oaths. This by itself is ample proof of the false claim made by her. It was further submitted that the Petitioner is a member of the local gram panchayat and has been attending office quite regularly and, therefore, this Court ought not to give credence to her plea and may proceed to dismiss the application with exemplary costs.

I have heard learned advocate for the parties and perused the order impugned. I do not see reason to disturb it since it is not perverse. However, for the purpose of a decision in respect of the argument advanced by Mr. Roy Chowdhury regarding the scope and effect of Sub-rule 2 of Rule 4 of Order 18, it is necessary to read Order 18 Rule 4 of the Code, relevant portion whereof provides as under:

Recording of evidence- (1) In every case, the examination in chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence: Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.

(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court, shall be taken either by the Court or by the Commissioner appointed by it: Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit. ....

In view of the amended provisions of Order 18 Rule of the Code with effect from July 1, 2002, it is no longer necessary for the Petitioner to attend the Trial Court and wait for long hours for recording of her oral evidence. Question of her cross-examination would arise only if her examination-in-chief is on affidavit. Such affidavit evidence is yet to be filed. It shall be open to the Petitioner to take steps in accordance with law, if so advised.

However, I do not find any justification to accept the submission of Mr. Roy Chowdhury. Cross-examination of a witness (whose examination-in-chief by affidavit has been furnished to the Court) on commission cannot be claimed as a matter of right. The proviso to Sub-rule 2 makes the position clear that while appointing commission, the Court shall take into account such relevant factors as it thinks fit. Discretion of the Court has been reserved, which must be exercised judiciously and according to well-established principles. Needless to observe, time is not yet ripe for the Trial Court to exercise power in terms of the said proviso.

While not disturbing the order under challenge, it is observed that further steps in connection with the suit shall follow in accordance with law. If at all the Petitioner after furnishing evidence (examination-in-chief) by affidavit makes a prayer for appointment of a Commissioner to record her evidence (cross-examination), the same shall be considered strictly in accordance with law and the Trial Court shall proceed to have the Petitioner cross-examined in such manner that is considered fit and proper by it. The Trial Court shall be free not to entertain the Petitioner''s prayer if circumstances do not warrant granting her relief, as claimed, but in such case proper application of mind should be apparent on the face of the order that might be passed. The Trial Court is encouraged to expedite decision on the suit.

Subject to the aforesaid observations, this application stands dismissed without order for costs. Urgent photostat certified copy of the order, if applied for, be given to the parties at an early date.