BANALATA HAZRA Vs. ANITA MUKHERJEE

JUDGEMENT

(1.) Order No. 104 dated June 4, 2014 passed in Misc. Case No. 66 of 2006 was impugned in the revisional application.

(2.) By the impugned the learned Judge allowed an application for Commission for the purpose of examining on oath, the petitioner before it, being the opposite party herein as her witness. On behalf of the petitioner here, reliance was placed on Order 18 Rule 3A of the Code of Civil Procedure, 1908 and it was contended that since the opposite party was the petitioner there it was incumbent upon the opposite party to offer herself as the witness in terms of such provisions. Reliance was also placed on 2002 Volume 2 Supreme Court Cases page 184 (N.C. Kaladharan v. Kamaleshwaran & Ors.) for such proposition. It was also submitted that, although the provisions of Order 18 Rule 3A was not mandatory, the learned Judge ought to have recorded the reasons as to why the learned Judge was allowing the opposite party to come as her witness after she had produced another witness prior to her.

(3.) On behalf of the opposite party it was contended that, the provisions of Order 18 Rule 3A was not mandatory. The opposite party was incapacitated due to medical reasons and as such could not be produce herself as her witness earlier. Therefore, there was no infirmity in the impugned order.