KUSUM LATA Vs. CHETAN GOUTAM AND ORS.

JUDGEMENT

(1.) THE suit is for specific performance. It was filed in 2008. Issues were framed in 2011. Several last opportunities were granted to the plaintiff to lead her evidence. The petitioner has not been able to conclude her evidence so far. The trial Court has noticed the conduct of the petitioner and found no justification to adjourn the case again and again for the same purpose and has proceeded to close the evidence of the plaintiff by order. The present petition has been filed assailing two orders. The first one dated February 17, 2014 declining the request of the petitioner for examining Mr. H.S. Naru, Advocate, scribe of the agreement to sell, through a Commission for recording of his evidence on the ground that he is sick and unable to attend court. The other order impugned is dated May 2, 2014 closing evidence of the petitioner.

(2.) LEARNED counsel for the petitioner submits that in other cases Sh. H.S. Naru has been allowed by courts to be examined through a Commission on interrogatories of otherwise but no such orders have been shown. However, facts with respect to sickness or infirmity making it impossible for Mr. H.S. Nam to attend Court was neither pleaded nor shown before the trial Court. The ingredients of Order 26 Rule 1 have to be satisfied before a commission can be sent by Court. In exercising jurisdiction under Article 227 the High Court must follow the regime of law. The jurisdiction under Article 227 is neither original nor appellate.

(3.) IN Nibaran Chandra Bag v. Mahendra Nath Ghughu, : A.I.R. 1963 S.C. 1895 the Supreme Court observed: