Calcutta High Court (Appellete Side)
Namita Ghosh And Anr vs Piyali Adhikari(Nee Banerjee) & Anr on 23 November, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 Sl. 02 23-11-2017
.
S.d. C O 2163 of 2016
Namita Ghosh and anr..
-versus-
Piyali Adhikari(nee Banerjee) & anr.
Mr. Kaushik Dey
....for the petitioners.
Mr. Hiranmoy Bhattacharaya
Mr. Chandra Nath Sarkar
...for the opposite party nos. 1 and 2.
The grievance of the petitioners is that their request for the oral evidence of the first petitioner to be taken out of turn has been rejected by the trial court.
The opposite parties are represented upon service. The opposite parties refer to the relevant application in the court below and say that there was no prayer for the evidence to be received on commission. The opposite parties say that the first petitioner has appeared in court in connection with some criminal matters and it cannot be the petitioners' case that the first petitioner would not be able to attend court when her evidence is received.
It appears that the opposite parties may have missed the woods for the trees. The substance of the petitioners' request was 2 that since the petitioner no. 1 is aged, her oral evidence should be recorded before she lost her mind or her health. The first petitioner did not indicate whether her evidence had to be recorded by court or before any commissioner. However, it is implicit that that the first petitioner must have made a request for a commissioner to be appointed for the purpose of receiving the evidence of the first petitioner, particularly since the issues have not been framed in the suit and trial has not commenced.
It is an everyday practice in a suit court for evidence to be received de bene esse whether it is at request of a plaintiff or a defendant. Such requests are looked into by the court rather charitably, particularly since it is recognised that it takes years these days for a contested suit to be disposed of.
In the light of the request made by the petitioners for the first petitioner's oral evidence to be received immediately, the trial court is directed to ensure that an appropriate person is appointed commissioner to record the evidence of the first petitioner.
It is also recorded that at the request of the petitioners, the fingerprint and thumb impression of the first petitioner have been directed to be recorded and the records preserved in the file pertaining to the relevant suit.
CO 2163 of 2016 is disposed of by giving leave to the petitioners to present this order before the trial court within a 3 fortnight from date, whereupon the trial court should make it convenient to appoint a commissioner to receive the oral evidence of the first petitioner. The order impugned stands set aside and modified to the above extent.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Sanjib Banerjee, J.)