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IN THE HIGH COURT OF ORISSA AT CUTTACK
K.R.MOHAPATRA
T.Nirmala – Appellant
Versus
T. Sravani – Respondent
JUDGMENT :
K.R.MOHAPATRA, J.
1. This matter is taken up through hybrid mode.
2. Order dated 26th October, 2022 (Annexure-1) passed by learned 1st 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 20th August, 2022 till 20th 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 ad
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....
If the witness is within the territories to which the Code extends, the Commission issued by the Court or Magistrate shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrat....
The court has the discretion to issue a commission to examine witnesses on commission, but this discretion must be exercised judiciously and judicially, especially in cases where the suit is filed fo....
The power to issue a commission for recording evidence is discretionary and should be exercised cautiously and sparingly, especially when the party to the litigation claims to be examined by a commis....
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