ADHIR CHANDRA BANERJEE Vs. LILABATI MUKHERJEE

JUDGEMENT

(1.) In the instant revisional application the plaintiff/petitioner has challenged the order No. 38 dated 9-1-1992 passed by the learned Munsif, 2nd Court, at Barasat in Title Suit No. 565 of 1986 by which the Learned Munsif has allowed the prayer of the defendant opposite party for examining the opposite on commission under the provisions of Order XXVI, Rule 1 of the Code of Civil Procedure.

(2.) The said application under Order XXVI, Rule 1 for such examination of the defendant on commission was made on the ground of the inability of the defendant to come before the Court because of her illness and old age and in support of the same a medical certificate was produced. Such application was contested by the plaintiff by filing an objection contending inter alia that such application does not disclose the nature of disease, condition of the patient and other relevant particulars regarding the sickness and/or infirmity of the patient.

(3.) Mr. Ajit Kumar Roy with Mr. Kanak Kumar Chatterjee appearing for the petitioner has challenged the aforesaid order passed by the Learned Munsif on the ground that the order does not disclose any reason for allowing the application nor does it appear from the order that the objection raised by the plaintiff against the aforesaid application was considered by the Learned Munsif at all. Mr. Roy has further submitted that Order XXVI, Rule 1 of the Code of Civil Procedure under which the Court has power to permit examination of witness on commission is an exception to the general rule and the same can be permitted only when the Court is satisfied that the circumstances under which such exception can be made exists but in the instant case the impugned order does not disclose at all that such satisfaction was arrived at by the Learned Munsif after consideration of all matters. In this connection Mr. Roy has relied on the decisions reported in (1924) 39 Cal LJ 598, (AIR 1924 Cal 971) and (1935) 39 Cal WN 595.