PHANINDRA KRISHNA DUTT Vs. RAJA PROMATHA NATH MALIA

JUDGEMENT

(1.) This is a rule in revision obtained by the plaintiff calling upon the defendant to show cause why an order should not be set aside whereby the defendant was ordered to be examined on commission at his own request.

(2.) It appears that the suit was launched in 1925 for the recovery of some Rs. 49,000 as remuneration due for work done as a managing contractor of a colliery and that the defendant had paid Court-fee on a counter claim for some two and half lacs, on account of damages alleged to have been caused to the defendant's colliery by the negligence of the plaintiff. The issues which were settled in 1925 contained a great many matters arising out of the counter claim.

(3.) In April 1927 the defendant put in a petition that he might be examined on commission on the ground that he was suffering from lumbago which made it impossible for him to remain in the same position for more than ten minutes. He filed a medical certificate to that effect. The plaintiff objected. He says that he took the point that the defendant in respect of the counter- claim was really in the position of a plaintiff. He disputed that the defendant was ill as alleged and that there was any necessity for his examination on commission, and he attacked the independence of the doctor who gave the medical certificate. The application was repeated and by the order of 6 May 1927 the Subordinate Judge granted the application. It appears from the order recorded that the main ground of opposition was that the case may not be taken up at an early date and that the witness, even if he is unwell, may recover in the meanwhile. The plaintiff does not admit that the witness is really ill. It is not known when the case can be taken up. Having set out these matters the learned Subordinate Judge goes on to say this: After hearing the pleaders I do not think that it is a fit case in which the prayer for the examination of the witness on commission shall be refused. I should however, recoup the other party by giving the cost of pleader for the examination of the said witness.