Madhya Pradesh High Court
Man Mohan Vyas vs Narendra Kumar Vyas Judgement Given By: ... on 4 December, 2013
1
W.P No.14009 of 2013
4.12.2013
Shri Aditya Sharma, counsel for the petitioner.
Shri Dhananjay Asati, counsel for respondents No.1 to 8.
Shri Amit Seth, PL for the respondents No.9/State.
Presence of respondent No.10 to adjudicate this petition is not required because he is the co-plaintiff with the petitioner in the trial court and has not challenged the impugned order, hence notice against such respondent is dispensed with if the same has not been served.
2. Instead to hear this petition on admission and pending IAs, in the available circumstances, with the consent of the parties, the same is heard for final disposal.
3. Heard. The petitioner/ plaintiff No.1 has filed this petition under Article 227 of the Constitution of India being aggrieved by the order 26.7.13 (Annex.P/3) passed by the Ist ADJ to the Court of ADJ, Hoshangabad in COS No.21-A/13, whereby his application filed under Order 26 rule 1 of the CPC to record the statement of the witnesses, namely, Raghuwar Prasad and Dr. Bedkar on commission, has been dismissed.
4. The petitioner herein has filed the impugned application to examine the above-mentioned witness on commission by appointing the Commissioner on the ground that the Raghuwar Prasad, being aged 77 years is suffering from Arthritis in knee, is not in a position to walk and, in such premises, he could not come from Bhopal to Hoshangabad to record his deposition and in this regard some medical papers of such witness has been filed while the prayer to record the deposition of the other witness Dr. Bedkar a practising Doctor of Bhopal on commission wasmade on account of his busyness in his profession.
5. The aforesaid application was opposed by the respondent No.1 to 8 by filing the rely saying that in the available circumstances such prayer of the petitioner could not be allowed.
6. On consideration such application was dismissed on the ground 2 W.P No.14009 of 2013 that on earlier occasion also such application was filed and the same was dismissed, on which, the petitioner has come to this court.
7. Having heard the counsel, after perusing the available papers, it is apparent that the earlier application of the petitioner in this regard was dismissed by the trial court in the lack of medical papers of Raguwar Prasad while dismissing such application the prayer to examine Dr. Bedkar was also dismissed and subsequently, the present application has been filed along with the medical papers of the Raghuwar Prasad to examine him on commission but the trial court has dismissed the same on the ground of aforesaid dismissal of the earlier application.
8. The approach of the trial court in considering the impugned application in respect of Raghuwar Prasad is not sustainable because the earlier application was not decided by the trial court after extending the opportunity to the petitioner to produce the medical papers of such witness and, in any case, if subsequent application was filed along with the medical papers then in that circumstance the court was bound to consider the matter taking into consideration such medical papers which was not considered earlier. So, in such premises, the application of the petitioner to examine the witness Raghuwar Prasad to record his statement on commission deserves to be and is hereby allowed. Till this extent the impugned order is modified.
9. So far dismissal of the aforesaid subsequent application in respect of Dr. Bedkar is concerned, the same has rightly been dismissed by the trial court. Firstly because there is no any change circumstance subsequent to dismissal of such prayer of the petitioner on earlier application and secondly, mere busyness of the doctor in his professional work could not be a ground to record his statement on commission when he is residing and practising in Bhopal which is only 72 Km far away from Hoshangabad. Then the petitioner may produce him on his responsibility before the court for examination or by making request to the trial court for issuing summons to call such witness. But in any case, the petitioner could not be permitted to record the deposition of Dr. Bedkar on commission. So, 3 W.P No.14009 of 2013 till this extent the impugned order of the trial court is hereby affirmed.
10. In view of the aforesaid, the trial court is directed to appoint the commissioner in accordance with the procedure prescribed under the law to record the statement of Raghuwar Prasad on the expenses of the petitioner.
11. It is expected from the trial court that such court shall fix some time to record the statement of the witness Raghuwar Prasad and the commissioner shall be appointed only after filing the affidavit of the witness Raghuwar Prasad under Order 18 rule 4 of the CPC.
12. Petition is allowed in part as indicated above.
C.C as per rules.
(U.C.Maheshwari) Judge MKL