YASHODA DEVI Vs. PRAKASH BHELOTIA

JUDGEMENT

(1.) A. K. Banerji, J. This revision is directed against the order, dated 17-2-1993 passed by the VIIth Additional District Judge, Gorakhpur by which the said Court dropped the proceedings for Commission for examining the witness on interrogatories and directed the defendant to produce his witnesses in and directed the defendant to produce his witnesses in Court.

(2.) BRIEF facts are that the landlord-Opp. party filed a S. C. C. Suit No. 7 of 1983 against the defendant- applicant for recovery of arrears of rent and ejectment. In the written statement the defendant denied the service of notice for terminating the tenancy on the ground that the said notice could not be served on the defendant by the refusal as she had gone to Bagha, district West Champaran, Bihar where she was under the treatment of Dr. M. Rizwan between the period 1-3-1983 to 23-3-1983. As evidence in support her case the defendant filed three papers which were medical certi ficates given by Dr. M. Rizwan. At the evidence stage an application (paper No. 209/c) was filed under Order XXVI, Rule 4, C. P. C. for examining" Dr. M. Rizwan at Begha, West Champaran on commission by serving interro gatories This application was opposed. However, the court below vide order dated 23-8-1990 allowed the said application but very surprisingly misconstrued the application and passed the order for examination of the defendant No. 1 on Commission instead of defendant's witness, Dr. Rizwan. It appears that despites this glaring mistake in the order none of the parties sought to get the same corrected. On the contrary the defendant-applicant deposited the necessary expenses, as ordered by the Court. Though the District Judge, Champaran fixed a date for recording the evidence, the Com mission could not be executed for one reason or the other for more than two years, and ultimately on 13-1-1993, the trial Court passed an order that a reminder be sent to the District Judge, West Champaran for completing the Commission and forwarding the report to the Court by 17-2-1993 otherwise the Court will proceed with the matter. On 17-2-1993 which was the date fixed, the defendant did not appear and the trial court passed the impugn ed order dropping the proceedings for Commission and directed the defendant to produce his witnesses in the Court on 6-3-1993. The defendant did not make any effort to get this ex parte order recalled but filed the present revision before this Court by challenging the impugned ex parte order dated 17-2-1993.

(3.) THE learned counsel for the defendant-applicant has however, con tended that the letter issued from the office of the Court at Gorakhpur to the District Judge, Champaran mentioned the examination of the witness Dr. M. Rizwan and therefore, no prejudice is caused to the plaintiff. I cannot agree. THE letter sent to the District Judge, West Champaran is only a ministerial act and could not take the form of the order of the Court. THE commission was only issued on the order dated 23-8-1990 which speaks about the examina tion of the defendant No. 1 and not of Dr. M. Rizwan. THE letter, therefore, cannot modify supersede or correct the order dated 23-8-1990.