Smt. Shadhna Shukla vs Radhe Shyam Bansal and Another

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution is directed against the order dated 07.05.2013 passed in Civil Suit No. 20A/2012, whereby application preferred by the petitioner/defendant under Order 26 Rule 1 r/w section 151 C.P.C. (Annexure P/4) is rejected by the Court below. In a suit for specific performance filed by the plaintiff/respondent, the petitioner filed the said application. In the application, it is contended that petitioner''s age is about 53 years. There is a stone in her gall-bladder. She is also suffering from appendicitis. In addition, she is a patient of high blood pressure and severe arthritis. The doctor had advised her not to remain standing for long time with further advise not to use staircase etc. In the application, it is further contended that petitioner cannot walk and cannot remain standing or seated for long time. Petitioner is getting regular treatment at her residence at Gwalior, therefore, her statement may be recorded on commission. In support of this contention, she filed medical documents issued by Apollo Clinic Gwalior and certificates issued by Dr. Satyendra Kumar Sharma (MS) (Ortho) and Dr. V.P. Middha (MS) (Ortho) and also filed certain other prescriptions and medical reports to show that petitioner is suffering from various ailments.

The Court below after hearing the parties rejected the said application on the ground that the petitioner relied on a judgment of this Court report in Smt. Annapurna Dubey Vs. Champalal @ Chaua and Another, . In the said case the witness was about 75 years of age. She was suffering from Arthritics, whereas in the present case the petitioner is only 55 years of age. As per the petitioner''s age, it cannot be said that she is suffering from such a severe ailment.

Learned counsel for the petitioner criticized the order and submits that the Court below should have allowed the application. Along with the reply to the application for vacating the interim order, a discharge card (Annexure A/1) is filed to show that petitioner was hospitalized.

Shri R.K. Upadhyay, learned counsel for the respondent No. 1 supported the order passed by the Court below.

I have heard learned counsel for the parties and perused the record.

The application of the petitioner shows that she has variety of ailments. The said application is supported by the medical certificates issued by specialist Doctors. Series of medical certificates and pathology reports show that petitioner is getting treatment for various ailments. The certificates issued by Dr. Sharma and Dr. Middha aforesaid make it crystal clear that petitioner has serious problem in using staircase or even in walking. She has been advised not to walk, use staircase and even stand or sit for long time. The Court below has rejected the application on the ground that the petitioner''s relatives are there in Shivpuri and, therefore, she can visit Shivpuri. In addition, it is held by the Court below that petitioner''s affidavit under Order 18 Rule 4 C.P.C. was notarized at Gwalior. Lastly, it is held that in the judgment of Annapurna Dubey (supra) the age of the litigant was 75 years, whereas in the present case the age of the petitioner is 55 years.

In the opinion of this Court, the Court below has taken hyper technical approach in the matter. The medical reports aforesaid make it crystal clear that the petitioner is suffering from various ailments because of which it is difficult for her to walk, use staircase, stand or sit at a particular place for long time. The degree of ailment or its seriousness cannot always be measured with the age of the patient. Thus, the Court below has clearly erred in comparing the age of the petitioner with that of the petitioner in Annapurna Dubey (supra). In the opinion of this Court, there were sufficient medical documents to grant the benefit of Order 26 Rule 1 C.P.C. Thus, I deem it proper in the interest of justice to allow the prayer of the petitioner.

Resultantly, the order dated 07.05.2013 passed in Civil Suit No. 20A/2012 is set aside. The application preferred under Order 26 Rule 1 r/w section 151 C.P.C. is allowed. The Court below is directed to act in accordance with law from that stage. Petition is allowed. No costs.