GOPAL CHANDRA BHATTACHARJEE Vs. DILIP KUMAR BHATTACHARYYA

JUDGEMENT

(1.) This is an application under Section 115 of the Code of Civil Procedure at the instance of plaintiffs and is directed against order No. 55 dated 7-2-2000 passed by Sri S.N. Maity, Learned Additional District Judge, 6th Court, Alipore by which the ld. Judge recalled the writ of Commission issued earlier by the said Court to examine a witness.

(2.) In a suit for granting of Letter of Administration the plaintiffs filed an application under Order 26 Rule 1 of the Code of Civil Procedure for examination of sole surviving attesting witness who happens to be a Doctor i.e. Dr. Ajitananda Mukhopadhyay on the ground of his illness and further ground that the said Dr. Ajitananda Mukhopadhyay was unable to attend Court and accordingly Commission was issued for examination of the said witness. It is not disputed that the defendant of that suit, on being aggrieved by the said order, moved in revision and this Court did not interfere with the order of the Trial Court appointing Commissioner for examination of the said witness. Thereafter, the defendant made a prayer on 8-9-99 before the ld. Trial Judge alleging that the said Doctor Mukhopadhyay was well and hearty and Dr. Mukhopadhyay is attending patients and, therefore, he was quite competent to attend the Court and so according to the defendant there was no reason for examination of the said Doctor on Commission. The ld. Trial Judge after having heard the parties recalled the order and stopped the Writ of Commission of examination of Dr. Ajitananda Mukhopadhyay who happens to be the sole surviving witness to the Will. There is no dispute that on revision filed by the said defendant against that order, this Court affirmed the order of the ld. Trial Court and dismissed the revisional application summarily. Therefore, the question is whether the Trial Judge was competent to recall their order for issuance of the Writ of Commission and stopping the examination of the said witness on commission.

(3.) The learned Advocate appearing for revision petitioner has drawn my attention to the decision of the Supreme Court reported in AIR 1970 SC 1 wherein it was held that if revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the order of the Subordinate Court has become merged in that order of the High Court. If it has got merged and the order if only of the High Court, the order of the Subordinate Court cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under Articles 226 or 227 of the Constitution of India. In the instant case the fact remains that by an earlier order of this Court the order granting of Commission was affirmed by this Court and the said order merged with the order of the Trial Court and, therefore, the subsequent order made by the Trial Judge i.e. the impugned order is illegal. It is apparent that the ld. Trial judge confirmed the whole issue and passed the impugned order on an erroneous view of the matter and the ld. Trial Judge also in utter disregard of principle of law and ignoring the earlier order made the impugned order. I feel constrained to make the said finding as the fact that matter was once brought before this Court and it was affirmed by this Court earlier, the Trial Judge recalled the said order which he is not authorised to do. The impugned order thus suffers from irregularity, illegality and impropriety also. It is submitted before me by the ld. Advocate for the respondent-Opposite Party that the said Doctor was an attending physician and had gone abroad. So, according to the defendant there was no reason for the said Doctor to come before this Court. But the ld. Advocate submits that these are all subsequent events. On the earlier occasion the Doctor went abroad for medical check up. The commission was issued having regard to the health of the doctor at that time and the said order was affirmed by this Court. Therefore, the Court cannot take any subsequent events and cannot recall the order.