PRADIP KUMAR GOENKA Vs. MANJU BHARATIA

JUDGEMENT

(1.) This application (G. A. No. 3317 of 2003) dated September 1st, 2003 has been filed by Smt. Lallta Devi Goenka, the defendant No. 2 in the suit. She prays for appointment of Commission under O. XXVI, R. 1 of the Code of Civil Procedure for recording her own evidence.

(2.) The defendant No. 2 has stated that because of sickness she is unable to come to this Court to depose in the case. As evidence of her sickness she has annexed to this application a certificate purporting to be signed by a registered medical practitioner. This certificate dated July 28th, 2003 reads as follows : TO WHOM IT MAY CONCERN This is to certify that Mrs. Lalita Goenka (Age : 71 years) w/o. Late Bhagawati Prasad Goenka of 11, Ashoka Road, Kolkat-700027 has been under my treatment since April 2003 Degenerative Disc Disease of Lumber Spine with Osteoporosis. She has had a recurrence of her back pain since 27-7-03 and she has been advised to take bed rest for 4 weeks after which I will review her to decide the further line of management. (SHAIKH HASSAN IQBAL) Reg. No. 44085 of WBMC"

(3.) The plaintiff No. 1 has filed an opposition dated September 22nd, 20o3 to this application. It has been stated in this opposition that the claim of sickness of the defendant No. 2 Is not a genuine claim, as will be evident from the fact that on August 29th, 2003 the defendant No. 2 went to Mumbai and came back on September 3rd, 2003. Besides stating that far from being sick, the defendant No. 2 is quite fit and has been moving from place to place without any difficulty, it has been alleged in this opposition that having remained out of town during the period from August 29th, 2003 to September 3rd, 2003 the defendant No. 2 could not have appeared before the Oath Commissioner of this Court for affirming her this application on September 1st, 2003; and hence the transparent falsehood Indulged in by the defendant No. 2 is required to be considered by this Court for the purpose of granting liberty to the plaintiff No. 1 to approach the appropriate Forum for prosecuting her. It has been categorically stated in this opposition that the defendant No. 2 is not at all sick as claimed in her application. The plaintiff No. 1 has also contended in his opposition that having regard to the issues involved in the case the demeanour of the defendant No. 2 at the time of her examination is required to be observed by this Court, and hence she should not be permitted to be examined by commission.