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1979 Supreme(Cal) 236
High Court Of Calcutta
Pratibha Bonnerjea
OCTOVIOUS STEEL AND CO.LTD. - Appellant
Versus
THE ENDOGRAM TEA CO.LTD. - Respondent
Suit 80 Of 1977
Decided On : 07/03/1979
BHABHA, R.C.DE
The Explanation to Rule 1, Order 26 of the Civil Procedure Code, which allows the court to accept a medical certificate as evidence of the sickness or infirmity of a person without calling the doctor as a witness, applies to all cases of an application for the issue of a commission on the ground of health, irrespective of the place of residence of the sick or infirm person.
Headnote:
COMMISSION TO EXAMINE WITNESS - MEDICAL CERTIFICATE - ADMISSIBILITY - EXPLANATION TO RULE 1, ORDER 26, CIVIL PROCEDURE CODE - CONSTRUCTION - PURPOSIVE APPROACH - COMMISSION TO EXAMINE FOREIGN WITNESS - GROUNDS FOR ISSUE - CONVENIENCE AND EXPENSES - DISCRETION OF COURT.
Fact of the Case:
The petitioner, in a suit, filed an application for the issue of a commission to examine Mr. Alan Fulton Macdonald, the former Chairman of the defendant company, who was residing in England. The petitioner relied on a medical certificate issued by a doctor in England stating that Mr. Macdonald was suffering from a skin infection and was advised not to travel. The plaintiff opposed the application on various grounds, including the inadmissibility of the medical certificate, the inability to cross-examine the witness effectively in England, and the high costs involved.
Finding of the Court:
The court held that the Explanation to Rule 1, Order 26 of the Civil Procedure Code, which allows the court to accept a medical certificate as evidence of the sickness or infirmity of a person without calling the doctor as a witness, applies to all cases of an application for the issue of a commission on the ground of health, irrespective of the place of residence of the sick or infirm person. The court further held that the medical certificate relied on by the petitioner was insufficient and vague and could not be acted upon. However, the court found that Mr. Macdonald was an important witness and that his evidence was necessary for the just decision of the suit. The court also held that the inconveniences and expenses involved in issuing a commission to examine a foreign witness were not sufficient grounds to refuse the commission.
Issues: 1. Whether the medical certificate issued by a doctor in England was admissible in evidence without the supporting affidavit of the doctor. 2. Whether the Explanation to Rule 1, Order 26 of the Civil Procedure Code applied only to cases where the witness was residing within the jurisdiction of the court. 3. Whether the court could issue a commission to examine a foreign witness on the ground of health. 4. Whether the inconveniences and expenses involved in issuing a commission to examine a foreign witness were sufficient grounds to refuse the commission.
Ratio Decidendi: 1. The Explanation to Rule 1, Order 26 of the Civil Procedure Code, which allows the court to accept a medical certificate as evidence of the sickness or infirmity of a person without calling the doctor as a witness, applies to all cases of an application for the issue of a commission on the ground of health, irrespective of the place of residence of the sick or infirm person. 2. The court can issue a commission to examine a foreign witness on the ground of health, even if the witness is not exempted from attending court under Order XVI, Rule 19 of the Civil Procedure Code. 3. The inconveniences and expenses involved in issuing a commission to examine a foreign witness are not sufficient grounds to refuse the commission, particularly when the witness is an important witness and his evidence is necessary for the just decision of the suit.
Final Decision: The court allowed the petitioner's application and appointed a Commissioner to take evidence of Mr. Alan Fulton Macdonald in England. The court also directed the petitioner to deposit Rs. 25,000/- with the plaintiff's Advocate on record within a fortnight from the date of the order. The entire costs of the commission in England, including the costs of boarding and lodging of three counsel for the plaintiff as well as the entire costs of the Commissioner and the Officer of the court who would accompany him, would be on the petitioner at the first instance.
( 1 ) THIS is an application by the defendant for issue of a commission to examine Mr. Alan Fulton Mac-Donald at No. 59 Penn Hill Avenue, Parkstone, Dorset in England. It is alleged in the petition that Mr. Mac-Donald was the Chairman of the defendant company from 1-1-76 to 30-12-77 and during his tenure of service he had written several letters which were relied on by both the parties in the present suit. It is further alleged that the witnesses of both the parties have referred to him several times. Mr Macdonald has retired from service and at present is not under the control of the petitioner. He is 54 years old and is a permanent resident of Britain and as such he cannot be compelled to come to India for giving evidence. In para 13 of the petition, it has been alleged that the petitioner had made all arrangements to bring Mr. Macdonald to India to give evidence in the suit. But in March 1979, when the petitioner's Director Mr. Pepperell requested Mr. Macdonald to come to India for giving evidence, he declined to do so on the ground that he had been suffering from severe skin infection since Jan. 1979 and had been advised by the doctor not to travel and expose himself to the hot climate. The petitioner relied on a medical certificate issued by one Mr. P. W. Isaac, M. A. B. B. , B. Chir of No. 100 Penn Hill Avenue, U. K.
( 2 ) THERE is no positive averment in the affidavit-in-opposition that Mr. Macdonald is still under the control of the defendant. There is also no denial of the fact that he is an important witness. It is alleged that the allegations that Mr. Macdonald declined to come to India due to his illness and the medical certificate, both are inadmissible in evidence and should be rejected. It is also alleged that the defendant has taken out this application with the mala fide motive to prepare the ground for not tendering Mr. Macdonald as a witness. Other main points raised against the issue of commission are as follows -- (i) The Court would not be able to watch the demeanour of the witness. (ii) It may be necessary to consult the records in the office of the plaintiff to check up the correctness of the evidence of the witness as also to confront him with such documents. Those documents being voluminous, it would not be possible for the defendant to carry them to U. K. As a result, the plaintiff may be deprived from effectively cross-examining Mr. Macdonald if he is examined in England. (iii) There are innumerable Exhibits in this suit and for the purpose of cross-examination, it may be necessary to show these Exhibits to the witness. It is not permissible to take away the Court's records from the custody of the Court. Hence the plaintiff would be deprived from effectively cross-examining this witness. (iv) The defendant has caused various documents to be produced in Court under subpoena from various authorities. Those documents may be necessary at the time of cross-examination of this witness. (v) There is racial disturbances in England and it would be unsafe to hold commission there. (vi) If the Commission is issued, it would result in huge expenditure. (vii) The defendant company has no assets excepting Endogram Tea Estate, the subject-matter of the suit. It is also not known whether the defendant has any assets in England. (viii) The whole object is to make the expenses of the suit prohibitive so far as the plaintiff is concerned. (ix) The Reserve Bank will not grant its sanction for the huge expenditure of foreign exchange.
( 3 ) THE application was heard on 3-5-79 when Mr. R. C. Deb, appearing on behalf of the plaintiff questioned the qualification of Mr. P. W. Isaac to isuse the medical certificate relied on by the petitioner. Thereupon I gave leave to the petitioner to file a supplementary affidavit describing in full the qualifications of Mr. Isaac and directed the plaintiff to file an affidavit in reply if necessary. Pursuant to that order, the petitioner affirmed an affidavit o
