JUDGMENT :

K.R.MOHAPATRA, J.

1. This matter is taken up through hybrid mode.

2. Order dated 26^th October, 2022 (Annexure-1) passed by learned 1^st Additional Senior Civil Judge, Berhampur in C.S. No. 86 of 2022 is under challenge in this CMP, whereby an application filed by the Plaintiff-Petitioner under Order XXVI Rule 1 and 4-A C.P.C. to appoint an Advocate Commissioner for her examination has been rejected.

3. Mr. Rath, learned counsel for the Petitioner submits that the Plaintiff-Petitioner is an old lady of 68 years and her both knees were operated and replaced in the year, 2017. She is unable to move properly due to lack of strength on her legs. In addition to that, she has got an injury on her right leg causing fracture of lateral malleolus. Hence, she was advised by the treating physician to take rest from 20^th August, 2022 till 20^th September, 2022. Due to her physical incapacity, she was not in a position to attend the Court to face the trial. Hence, she filed an application to appoint an Advocate Commissioner for her examination. The said application was rejected on the ground that the reason assigned does not come under the purview of the Rule. Further, the period of rest advised by the treating physician had already been over by the time the petition was moved. It was further observed in the impugned order that if the Petitioner will not be examined in Court, her demeanour cannot be marked.

3.1 Mr. Rath, learned counsel for the Petitioner further submits that the grounds set out for rejection of the petition are not sustainable in the eyes of law. He referred to the provision under Order XXVI Rule 1 and 4-A C.P.C., which runs as under:

“1. Cases in which Court may issue commission to examine witness.—Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it :

Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.

Explanation.—The Court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.

2 to 4

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4A. Commission for examination of any person resident within the local limits of the jurisdiction of the Court.—Notwithstanding anything contained in these rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.”

3.2 He also referred to Order XVIII Rule 4(4) read with Rule 19 C.P.C. which read as under:

“4. Recording of evidence-

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(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:

Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.

19. Power to get statements recorded on commission Notwithstanding anything contained in these rules, the court may, instead of examining witnesses in open court, direct their statements to be recorded on commission under rule 4A of Order XXVI.”

3.3 He, therefore, submits that the Commissioner has power to record remarks as it thinks material on the demeanour of a witness while under examination. It is his submission that in these days, when technology has advanced to the extent of examination of a witness through virtual mode, examination of the Plaintiff-Petitioner by a Commissioner will certainly not prejudice the Defendant-Opposite Party. He