MIR ABDUL SOVAN Vs. RAFIKAN BIBI

JUDGEMENT

(1.) DEFENDANTS 1. 2 and 3 are before this Court in an application under Section 115 of the Code of Civil Procedure.

(2.) IN Title Suit No. 85 of 1968 of the court of the learned Subordinate Judge, balasore. an order was obtained on 31-8-1970 that plaintiff No. 1 may be examined before a commissioner on the ground that she was a very old lady unable to attend court at the time of trial. Several orders were passed by the court from time to time in the matter of her examination on Commission. Ultimately on 19-4-1971 the commissioner submitted his report along with the deposition of plaintiff No. 1. By order No. 60 dated 13-5-1971, the learned trial Judge directed:-

(3.) THERE is substantial force in the contention of Mr. Jagdeb Ray that such a question should not have been left to be decided at the time of argument. In case the plaintiff's evidence recorded before the commissioner was to be received as evidence in the suit, there was hardly scope to examine the plaintiff over again and thereby duplicate the work. If the evidence was not to be utilised, certainly the plaintiff was to have herself examined in court. Deferring the matter has also another disadvantage. The defendants should have been in a position to know as to what use they could put the previous statement of the plaintiff before the commissioner during her further examination in court. As such these matters should not have been left to be decided at the stage of argument and evidence should not have been permitted to be recorded until the parties were told finally as to what was the position of the evidence recorded by the commissioner. The jurisdiction vested in the learned trial judge has not been properly exercised and by deferring to dispose of the matter which arose for decision, the parties are likely to be prejudiced.