MEGHNAD GHOSE Vs. INDU BHUSAN GHOSE
LAWS(CAL)-1976-6-21
HIGH COURT OF CALCUTTA
Decided on June 07,1976

MEGHNAD GHOSE Appellant
VERSUS
INDU BHUSAN GHOSE Respondents


Referred Judgements :-

SATISH CHANDRA V. KUMAR SATISH [REFERRED TO]
PERUMAL V. S I. RAILWAY [REFERRED TO]
RAMA IYER DECEASED THEREAFTER HIS HEIRS AND LEGAL REPRESENTATIVES VS. SUNDARESA PONNAPOONDAR [REFERRED TO]
SRIS CHANDRA NANDY VS. ANNAPURNA RAY [REFERRED TO]
PANCHKARI MITRA VS. PANCHANAN SAHA [REFERRED TO]
SARADA VS. NHATTIYALA DEVAKI [REFERRED TO]
PHANINDRA KRISHNA DUTT VS. RAJA PROMATHA NATH MALIA [REFERRED TO]


JUDGEMENT

- (1.)THIS is an application under section 115 of the Code of Civil Procedure challenging Order no. 125 dated 11th July 1972 and. Orders Nos. 132 and 135 dated 7th august 1972 and 9th August 1972 respectively passed by the learned subordinate Judge, 9th Court at Alipore, in Title Suit No. 86 of 1966.
(2.)THE plaintiff is the petitioner before us. The petitioner through his next friend instituted a Title Suit against the opposite parties for partition by metes and bounds and for accounts. When the suit became ready for hearing on 26th June, 1972 the opposite parties 1 and 2 filed an application stating one Sri Satish Chandra ghosh, one of the witnesses, cited on behalf of the defendants and who happens to be the maternal uncle of the petitioner and the opposite parties Nos. 1 and 2 and is acquainted with ail the facts of the case should be examined on commission. The grounds stated in the application were that the witness is 76 or 77 years of age, that his vision is not well due to cataract and that due to palpitation and heart disease he does not go out of the house. It was further stated that it is not possible for him to come to court to depose and in that event his life would be in danger. Under the circumstances it was prayed that the witness should be examined on commission at his residence at 18/1, Dr. Suresh Sarkar Road. Subsequently, a medical certificate dated 10th July, 1972 was produced on behalf of the opposite parties Nos. 1 and 2 in support of the statements made in the application. The petitioner filed an objection challenging the grounds made out in the application. It was asserted that Shri satish Chandra Ghosh's eye-sight was not defective and he was not suffering from any heart trouble or palpitation and that he is quite hale and hearty. The petition of objection was supported by an affidavit by an employee of the next friend of the petitioner. The learned Subordinate Judge disposed of the application simply by saying "considered the affidavit sworn by one of the employees of the plaintiff and not by his guardian and the medical certificate. In my opinion there is sufficient ground for examining the witness on commission. " On 5th August 1972, the petitioner filed an application under section 151 for reconsideration of the order referred to above. The said application was supported by an affidavit affirmed by the next friend of the petitioner. On 5th of August, 1972, the learned Judge upon an application filed by the opposite parties nos. 1 and 2 for shifting the date of peremptory hearing, was pleased to fix the date of hearing on 19th September, 1972. By another order being Order no. 131 dated 5th August, 1972 the learned Judge was pleased to direct that the petitioner's application under section 151 be put up on the date fixed for hearing. It is stated that the petitioner was under the impression that his application under section 151 would be taken up for hearing on 19th of September 1972. But it appears that on 7th August 1972 the petitioner's application was taken up and as the petitioner was absent the same was rejected. On the same day an application was filed an behalf of the petitioner stating all the facts and requesting the learned judge to keep the said petition on record. On August, 1972, another application was filed by the petitioner for setting aside the Order No. 132 dated 7th of August, 1972, and for restoration of the previous application dated 5th of August 1972. This application was also rejected by the learned subordinate Judge. Being aggrieved by the aforesaid orders, the present application has been filed.
(3.)MR. Sarkar, learned Advocate appearing on behalf of the opposite parties, takes a preliminary point, namely, that this application under section 115 is not maintainable. It is submitted that the orders passed by the learned Subordinate Judge were quite within his jurisdiction. The learned Judge was quite within his right to exercise his discretion considering the facts and circumstances of the case. That discretion was judicially exercised and that being so, the present application is not maintainable. In support of his contention he refers to a decision reported in A. I. R. 1928 Calcutta 421 (Phanindra Krishna Dutta -v- Raja promatha Nath Malia ). In this case also an application was filed against an order passed under Order 26 Rule 1 of the Code. It was held "where a court is satisfied under Rule 1 Order 26 that the person is sick and unable to attend Court and then has exercised its discretion as to whether in those circumstances a commission should issue and has issued a commission, that discretion cannot be revised under section 115, Civil Procedure Code, whether the judgment of the Court below on this interlocutory application consists of a complete treatise on the subject or an incomplete treatise on the subject. " But it may be noted that in this case their Lordships held "the question is whether it is a case in which it has been established by reason of the illness of the defendant that the prayer for examination on commission must in justice be granted. " It has further been held "it is quite clear that in a case of this character the whole jurisdiction to make such an order arises out of the fact, which has to be found, of the sickness of the person in question. " Their Lordships were, therefore, conscious of the fact that there are two parts in Order 26 Rule 1. The first part is when the Court is satisfied about sickness, then the court is vested with jurisdiction and then it is for the court to exercise discretion. which is the second part.
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