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BISWAROOP CHOWDHURY
Kamal Paul @ Kamal Pal – Appellant
Versus
Bijoy Paul @ Bijoy Pal – Respondent
| Table of Content |
|---|
| 1. background of partition suit and illness of defendant. (Para 1 , 2 , 3 , 5) |
| 2. petitioner's application for evidence on health grounds. (Para 4 , 6) |
| 3. discretion of the court for issuing commission. (Para 7 , 10 , 11 , 12) |
| 4. court's reasoning on appointing advocate commissioner. (Para 8 , 9 , 17) |
| 5. court's reasoning for allowing the petitioner's request. (Para 16) |
| 6. revocation of previous orders and granting commission. (Para 18 , 19 , 20) |
JUDGMENT :
(Biswaroop Chowdhury, J.)
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:
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 Petitione
The court affirmed the necessity to consider a defendant's health and age in granting commissions for evidence gathering, reinforcing the right to a fair trial.
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.
The court upheld the trial Court's discretion to appoint an advocate commissioner for recording evidence when a witness is unable to attend due to medical conditions, emphasizing justice over procedu....
The court clarified that the inability to attend court due to health issues must be addressed with sensitivity, and updated medical evidence is critical for justifying the appointment of a commission....
The court clarified that the appointment of an Advocate Commissioner and summoning witnesses are at the court's discretion, not a right of the parties, and the burden of proof lies with the plaintiff....
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