- (1.) Instant revision impugns the order dated April 9, 1997 of the learned Additional Distt. Judge No. 1 Jodhpur, whereby application under Order 26, Rule 1, C.P.C. moved by the defendant-petitioner (for short the Company) for issuance of commission to examine the Managing Director of the Company, was dismissed.
(2.) Brief facts giving rise to this revision are that the plaintiff non-petitioner (for short the plaintiff) instituted suit for accounts on March 5, 1990 against the company in the trial Court. The written statement of the company was signed and verified by its General Manager A. S. Pathan (since dead). The evidence of the plaintiff was closed on Feb. 6, 1997 and the case was posted for recording the evidence of the company. On March 6, 1997 the company submitted an application under Order 26, Rule 1, C.P.C., for issuance of Commission to examine its Managing Director Chhote Lal Mistry. It was stated in the application that the witness is a heart patient and he was operated upon in 1990. He is not in a position to travel by air or Motor car therefore his statements may be recorded on commission. His Medical certificate was also produced. Learned trial Court dismissed the application on the ground that there was no justification for issuing the commission. Company's General Manager Ramesh Chand can appear as a witness and depose on behalf of the company.
(3.) Mr. R. R. Nagori, learned counsel appearing for the company canvassed that prayer for issuing of commission cannot be refused. The application was supported by a medical certificate and it ought to have relied upon by the trial Court. Learned counsel further contended that there was no delay on the part of the company and the application was filed on the day when the case was posted for recording the evidence of the company. Reliance was placed on Bakhtawar Khan v. Noor Mohd., AIR 1986 Raj 167 and Jiwi Bai v. Laxmi Chand, AIR 1955 Raj 32.;