PRASHANTA KUMAR JENA Vs. P C DAS ADHIKARY

JUDGEMENT

(1.) IN the present writ application, the Petitioner has sought to challenge the Order Dated 28.11.2006 (Annexure -3) passed by the Addl. Civil Judge (Sr. Divn.), Balasore in T.S. No. 306 of 1990 -1. By the said order, Learned Civil Judge has been pleased to allow a petition filed by Opp. Party No. 1 (Defendant No. 1) seeking 'to record his evidence by a Commission.

(2.) LEARNED Counsel or the Petitioner submits that in the petition filed by Opp. Party No. 1 for deputation of a Commission, except making some bald statements, no documentary evidence was produced before the Court along with the petition filed under Order 26, Rule 1 C.P.C. Learned Counsel draws my attention to the objection filed by his client in which he had specifically pointed out that the Court should not have considered that application since no medical certificate was attached to it showing that he was ailing or not. He further submits that though the age of Defendant No. 1 was 65 at that point of time, this by itself was no reason as to why the Defendant could not come to Court to give evidence. In other words, Learned Counsel for the Petitioner submits that the age alone cannot be the criterion for consideration of a petition to depute a Commission. Learned Counsel for the Petitioner in support of his contention placed reliance on a decision of this Court in the case of Manoharlal Arora v. Atma Prakash Arora and Ors. 49(1980) CLT 233.

(3.) IN the Judgment relied upon by the Learned Counsel for the petition referred to above, this Court laid down the principle that though the power to issue a commission has been conferred under Section 75 of the Code of Civil Procedure, it is nevertheless 'discretionary' and is subject to the conditions and limitation as have been prescribed under the Rules, namely, Order 26.