SITARAM SONKAR Vs. BASANT PROSAD SHAW

JUDGEMENT

(1.) No one has appeared on behalf of either of the parties. No accommodation is prayed for either.

(2.) This revisional application is directed against Order dated 9th July, 2010 passed by the learned Civil Judge (Junior Division), 4th Court at Howrah in Title Suit No. 94 of 2004.

(3.) The petitioner is the defendant in the aforesaid Title Suit. The suit is for eviction of licensee. In the aforesaid suit the petitioner/defendant filed an application under Order 26 Rule 1 read with Section 151 of the Code of Civil Procedure praying for appointment of an Advocate Commissioner to record evidences of D.W.1 i.e. the defendant. In the said application the defendant/petitioner contended that due to illness he was unable to adduce evidence (cross-examination) as he was suffering from various ailments. He submitted a medical certificate in support of his ailments. On perusal of the application and the said medical certificate the learned Court below observed that the medical certificate was issued on 11th July, 2009 and the petition was filed on 5th August, 2009. On the date of hearing the petitioner did not file any other medical certificate. In the medical certificate the doctor has advised him to take rest but the learned Court below observed that no date has been mentioned till when the petitioner was to take rest and even if the petitioner continued to be unwell, further certificate ought to have been filed before the Court below to show that he was not in a position to move. This Court does not find any reason to disagree with the finding of the learned Court below and therefore, the ground on which the application was made for appointment of an Advocate Commissioner in terms of the provisions contemplated under Order 26 Rule 1 of the Code of Civil Procedure are not tenable. From the order sheets annexed to the revisional application it further appears that 20th September, 2010 was fixed for bringing the stay order from the Hon'ble High Court. From the record it does not appear that any order of stay has been passed in this matter. Be that as it may, the order impugned does not warrant interference of this Court. The same is affirmed.