The court has discretion to appoint an Advocate Commissioner to take evidence from a defendant unable to attend court due to health reasons, emphasizing the protection of fundamental rights.

JUDGMENT :

Biswaroop Chowdhury, J.

1. The petitioner before this Court is a defendant in a suit for partition and is aggrieved by the Order dated 21/09/2022 and 14/11/2022 passed by Learned Judge Small Causes Court Sealdah. in Title Suit No. 42 of 2017.

2. The case of the petitioner may be summed up thus:

1. The plaintiff/respondent no.1 filed a suit for partition before the Learned Small Causes Court at Sealdah being T.S. No. 42 of 2017.

2. The petitioner/defendant no.2 entered appearance in the suit by filing a written statement. The issues to the suit were framed and the plaintiff concluded his examination in chief and cross examination.

3. The Learned Trial Court fixed a date for Defendant's Witness on 01.08.2022 and the Petitioner/defendant no. 2 was not able to appear before the said Court for his evidence on the said date and thereafter another date was fixed on 22-08-2022. Again the date was fixed on 19.09.2022 when due to resolution of local bar function of the Court could not be held and thereafter 21-09-2022, was fixed for evidence of the Defendant's Witness.

4. On 21-09-2022 the petitioner/defendant no. 2 filed an application with medical report praying for appointment of an advocate as a Commissioner for taking evidence in his house as the said defendant was suffering from Acute arthritis problem and other ancillaries old age problem and also Cardiac heart disease related problems but the Learned Court was pleased to reject the said application and fix 14-11-2022 for argument of the said suit.

5. On 14-11-2022 the petitioner filed an application under Section 151 C.P.C. for recalling order dated 21-09-2022 and to grant a chance to the petitioner to adduce evidence, but the said application was rejected and 28-11-2022 was fixed for arguments.

3. The petitioner being aggrieved by the order dated 21-09-2022 and 14-11- 2022 passed by Learned Trial Court has come up with the instant application.

4. It is the contention of the petitioner that the Learned Trial Court erred in law by not considering the facts about the ill health of the petitioner/the defendant no-2. It is further contended that the Learned Trial Court ought to have considered that the petitioner is an old person and he is seriously affected with arthritis problem as also heart ailments. It is also contended that the Learned Court below ought to have been lenient while considering the petition made under section 151 CPC on 21/09/2022 for appointment of Advocate as a Commissioner for taking evidence of the ailing defendant no. 2 in his home.

5. Pursuant to the filing of this application notice was issued upon the respondents. As the respondents did not appear inspite of service of notice the case was taken up for hearing in the absence of the respondents.

6. Heard Learned Advocate for the petitioner, perused the petition filed and materials on record. Learned Advocate for the petitioner submits that the petitioner was unable to attend Court due to illness and the Learned Trial Court erred in rejecting the petition for appointment of Commissioner to take the deposition of the petitioner/defendant. Learned Advocate further submits that the evidence of the defendants ought not to have been closed. Learned Advocate produces copy of the medical prescriptions showing treatment of the petitioner and relies upon the following decision:

Mirmala Debi Choubey and Ors. v. Pranab Kumar Banerjee and Ors. 2022 (3) Indian Civil Cases 420 (Cal)

7. Now in order to decide the merits of the orders dated 21-09-2022 and 14- 11-2022 passed by Learned Trial Court it is necessary to consider the provisions contained in Order XXVI Rule 1 of the Code of Civil Procedure. Or