Madhya Pradesh High Court
Bhagwandas Jain vs Devendra Chaudhary on 25 November, 2019
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
M.P. No.5591/2019
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB : HON'BLE MR. JUSTICE S.A. DHARMADHIKARI
M.P. No. 5591 of 2019
Bhagwandas Jain
Vs.
Devendra Chaudhary
Whether reportable :- Yes /No
__________________________________________________________
For Petitioner : Shri P.C. Chandil, Advocate.
For Respondent : Shri D.D. Bansal, Advocate
ORDER
(Delivered on this Day of 25th November, 2019) With the consent of parties, this petition is disposed of finally.
2. In this petition under Article 227 of Constitution of India, the petitioner has assailed the order dated 20/09/2019 (Annexure P/1) passed by 10th Civil Judge, Class
-1, Gwalior, whereby, application under Order 26 Rule 1 of CPC has been rejected.
3. The brief facts leading to filing of this case are that the suit for specific performance of the alleged agreement to sale dated 05/12/2012 has been filed by the plaintiff /respondent against the petitioner on the ground that the petitioner is a owner of the suit house situated at Gangamai Santar, Morar. It is further pleaded that the petitioner's father late Shri Dinanath Jain purchased the suit 2 M.P. No.5591/2019 house by registered sale deed dated 16/01/1941 and after death of Shri Dinanath Jain, petitioner got this house in succession. The petitioner agreed to sell the suit house to the respondent for a consideration of Rs. 18,00,000/- and executed a document of agreement to sale on 05/12/2012 and a sum of Rs. 17,00,000/- was paid to the petitioner and remaining amount of Rs. 1, 00, 000/- was to be paid at the time of execution of sale deed. Out of Rs. 17,00,000/- Rs. 16,50,000/- was paid in cash, whereas, Rs. 50,000/- was paid through account payee cheque. Since the petitioner did not perform the contract, a suit for specific performance was filed by the plaintiff/respondent. The written statement was filed by the petitioner and the plaint averments were denied. The issues were framed and thereafter the matter was listed for evidence.
4. The petitioner being an old person aged about 76 years is suffering from Paralysis attack as well as a patient of heart disease, therefore, he was not in a position to enter into the witness box and depose his evidence before the court below. The petitioner, thereafter, submitted an application under Order 26 Rule 1 of CPC before the trial court with a prayer for recording his statement on commission at his residential place. In support of the application, the petitioner has submitted his affidavit and medical certificate issued by Dr. Anil Agrawal. No reply was filed by the respondent. However, the trial court rejected the application vide order dated 20/09/2019. Being aggrieved, the present petition has been filed.
5. The trial court rejected the application on the ground that in the medical certificate, it is stated that the 3 M.P. No.5591/2019 Doctor had examined him and has advised 10-15 days rest, but in the said report, it is not stated that the petitioner is unable to walk or is not in a position to go outside of his house and accordingly, rejected the application.
6. Learned counsel for the petitioner contends that the impugned order is per-se-illegal and deserves to be set aside. It is further contended that the petitioner being 76 years old person and having suffering from paralysis attack and a heart patient and, therefore, not even able to stand in the witness box, the trial court ought to have allowed the application.
7. On the other hand, learned counsel for the respondent contended that the trial court has rightly rejected the application under Order 26 Rule 1 of CPC. In the medical certificate, no such finding has been given by the Doctor. The son of the petitioner namely Ramesh and Prembabu Jain are having criminal antecedents. They are absconding and are wanted in a case relating to murder. In the present case, the respondent is having differences with his father and if statement is recorded in the house, there is every possibility of tampering with the evidence on the gun point. A criminal case has been registered against son of the petitioner for the offence punishable under section 302/34 and 120-B of IPC. Therefore, in such circumstances, commission may not be issued. It is further contended that an application under Order 26 Rule 1 of CPC is not duly supported by an affidavit of the petitioner, as such, according to Order 26 Rule 2 of CPC, it is provided that "order for issuance of commission for examination of the witnesses may be made by the Court either of its own 4 M.P. No.5591/2019 motion or on an application supported by an affidavit or otherwise of any party to the suit or witness to be examined." In the present application, no such affidavit was filed, therefore, it is not maintainable. It is further contended that earlier the petitioner on the ground of his illness has given power of attorney to his son namely Prembabu Jain for the present case and in pursuance of the same his son had filed an affidavit for chief examination and therefore, there is no necessity at all for issuance of commission. On these grounds, it is prayed for rejection of this petition.
8. Heard learned counsel for the parties and perused the record.
9. On bare perusal of the impugned order as well as medical certificates annexed with the petition as Annexure P/6, it can be seen that he has been advised rest and it was nowhere stated that he is unable to walk or is not in a position to go outside of his house. The trial court has exercised its discretionary power on sound judicial principle and has recorded categorical reasons for rejecting the application. The medical certificate does not contain relevant particulars on it so that the court can come to the conclusion that it would be risky for the patient to attend the court. Such examination of the witness in the court is a rule and examination on a commission is exception under special circumstances only if the court is satisfied that the reasons are genuine with regard to sickness or infirmity.
10. Accordingly, there is no palpable error apparent on the face of the record so as to call interference by this Court in exercise of its inherent power under Article 227 of 5 M.P. No.5591/2019 the Constitution of India.
11. Accordingly, this petition being devoid of merit and substance is hereby dismissed. There shall be no order as to costs.
12. The interim relief granted by this Court on 19/11/2019 is hereby vacated. The trial court is directed to proceed further in accordance with law and conclude the trial as expeditiously as possible.
(S.A. Dharmadhikari) JUDGE (25/11/2019) Durgekar* SANJAY N DURGEKAR 2019.11.25 16:55:05 +05'30'