The court upheld the trial court's discretion in allowing a commission for witness examination due to the plaintiff's age and medical condition.

Order on Board

09/09/2025

1. The petitioner has filed this petition seeking the following relief(s):-

“1) To set aside the order dated 08.07.2025 passed in Civil Suit No. 372-A/2023 (Annex P-7) in relation to application under O 26 R 1 CPC passed by the Fourth Additional Judge of the First Civil Judge, Junior Division, District Raipur (C.G.), in the interest of justice.

2) To call for the entire original records from the office of the Respondents for kind perusal of the Hon'ble Court. To issue any other writ, order or direction which the Hon'ble Court deems fit in the interest of justice.”

2. Learned counsel appearing for the petitioner would submit that the respondent/ plaintiff filed a suit for vacant possession of the suit property and mesne profits before the learned Court below. He would contend that after service of summons, the petitioner/ defendant appeared before the Court and filed his written statement alongwith a counterclaim. He would contend that the learned trial Court framed issues and thereafter, the respondent moved an application under Order 26 Rule 1 of CPC on the ground that the plaintiff is approximately 81 years old, suffering from various ailments, and due to old-age, is incapable of sitting for prolonged periods or walking normally. The plaintiff prayed for issuance of commission.

3. Learned counsel for the petitioner would submit that the petitioner filed a reply to the said application, raising an objection that the plaintiff has not produced any medical documents or affidavit in support of his application. He would further contend that the learned trial Court, vide order dated 22.7.2025, allowed the said application. He would argue that the plaintiff submitted a medical certificate to substantiate his medical condition but no supporting documents were submitted. It is also contended that the plaintiff’s true intention was to avoid facing trial, therefore, an application under Order 26 Rule 1 of CPC was moved.

He would pray to set aside the order dated 22.7.2025.

4. I have heard learned counsel for the petitioner at length and perused the documents.

5. Order 26 Rule 1 of CPC deals with cases in which Court may issue commission to examine witness. The provision is reproduced herein below:

“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.”

6. According to provisions of Section 75 of CPC, the Court has been conferred with the power of Court to issue commissions, to examine any person, to make a local investigations, examine or adjust accounts, make partitions etc. A joint reading of provisions of Order 26 Rule 1 and Section 75 of CPC would make it clear that the Court, in its discretion, may allow an application to examine any person on commission.

7. In the present case, as reflected, the plaintiff is 81 years old and suffering from various ailments, therefore, the learned trial Court allowed the application moved by the respondent/ plaintiff under Order 26 Rule 1 of CPC. Considering the reasons assigned by the learned trial Court, the age of the plaintiff and his medical condition, in my opinion, learned Court below has not committed any error of law while allowing the application.

8. Consequently, this petition fails and is hereby dismissed Sd/-