Calcutta High Court
Indu Devi Tapuriah vs Punjab National Bank & Ors on 29 March, 2016
Author: Harish Tandon
Bench: Harish Tandon
ORDER SHEET
GA 2796/2013
CS 79/2004
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
INDU DEVI TAPURIAH
Versus
PUNJAB NATIONAL BANK & ORS.
BEFORE:
The Hon'ble JUSTICE HARISH TANDON
Date : 29th March, 2016.
Mr.Goutam Chakraborty,
Mrs.P. Roy Chowdhury, Adv., for the plaintiff.
Mr.Rajarshi Dutta,
Ms.S. Datta, Advs., for the defendant no.1.
Mr.Samrat Sen, Sr. Adv
Mr.S. Mukherjee, Adv.,
Mr.J. roy, Adv., for the defendant no.2.
The Court : The present application is taken out by the petitioner to be examined de bene
esse without waiting for the trial and that too by appointing a commissioner. It is averred in the
application that on 28th May, 2013 she was diagonised to suffer from basal ganglia of brain and
was admitted in Calcutta Medical Research Institute for treatment. She was discharged on 5th
June, 2013 and was further advised to take a complete rest in the house. It is further alleged that
her condition is deteriorating day by day and she has become so feeble to attend the court for her
examination standing in the witness box.
In support of the aforesaid allegations, the discharged summary and certificate issued by
Calcutta Medical Research Institute is annexed to the said application. The discharged summary
discloses not only the treatment for basal ganglia of brain but the improvement of her condition
which may not require for the treatment while staying in the hospital. There is no document except
2
in relation to her hospitalization in the year 2013 in the original application. However, by way of a
supplementary affidavit filed subsequently a doctor certificate dated 8th February, 2015 is annexed
that she is suffering from intermittent convulsion due to brain fumer with hypotension with further
advise to take bed rest.
After those documents were placed before this Court, the respondent no.2 discloses the
dates in the form of chart when the petitioner came to the court either for the purpose of affirmation or for filing an application. According to the said respondent, even after discharge from the hospital in the Month of March, she attended the court for the purpose of re-verification of the amended pleading in the Month of April, 2015. What is sought to be conveyed to the court is that she is not so infirm that she should be examined de bene esse before the suit ripe for trial.
Mr.Sen further submits that none of the certificates produced by the petitioner shall throw light on her incapacity or infirmity in undertaking the journey to the court for the purpose of examination and, therefore, she should not be examined by appointing a commissioner.
The learned Advocate for the petitioner produced another medical certificate issued by the same doctor but this time it is recorded that she is suffering from tremor of body like parkinson and suffers from faint attack since last two years. Such observation was absent in his earlier certificate dated 8th February, 2015.
There is no hesitation in my mind that at every stage of hearing of the instant application a new case is sought to be made. It is evident and apparent from the conduct of the petitioner that she does not want to be examined in the witness box and avoidance in appearance before this Court can very well be inferred. Order 18 Rule 16 of the Code of Civil Procedure empowers the court to examine a witness and to record his or her evidence if the said witness is about to leave the jurisdiction of the court or on other sufficient cause after recording the satisfaction that if the evidence is not taken forthwith, a grave injustice would be caused.
A person who was suffering since 2013 and, in fact, attended the court after being discharged from the hospital not on one solitary day but on several occasions cannot deserve any 3 sympathetic consideration of the court. The recording of satisfaction on the parameters as set down in Order 18 Rule 16 is mandatory and should be exercised with great caution and circumspection. Examining a witness before the suit matures for trial should not be readily allowed except on an exceptional and extraordinary circumstances by invoking Order 18 Rule 16 of the Code. The conduct of the petitioner which is apparent on the record sufficiently indicates that though she is otherwise capable of embarking the journey from her house to the court and, in fact, attended the Court on several occasions is to deprive the respondent as well as the court to see her demeanor. Though Order 18 Rule 16 does not, strict sense applies to the Original Side of the Court because of Rule 3 of Order 49 but there is no fetter in applying such principles.
The application is, thus, dismissed. No costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties within three days therefrom subject to compliance of all requisite formalities.
(HARISH TANDON, J.) sd/