Judgment 1. THIS is an application under section 115 of the Code of Civil Procedure challenging Order no. 125 dated 11th July 1972 and. Orders Nos. 132 and 135 dated 7th august 1972 and 9th August 1972 respectively passed by the learned subordinate Judge, 9th Court at Alipore, in Title Suit No. 86 of 1966. 2. THE plaintiff is the petitioner before us. The petitioner through his next friend instituted a Title Suit against the opposite parties for partition by metes and bounds and for accounts. When the suit became ready for hearing on 26th June, 1972 the opposite parties 1 and 2 filed an application stating one Sri Satish Chandra ghosh, one of the witnesses, cited on behalf of the defendants and who happens to be the maternal uncle of the petitioner and the opposite parties Nos. 1 and 2 and is acquainted with ail the facts of the case should be examined on commission. The grounds stated in the application were that the witness is 76 or 77 years of age, that his vision is not well due to cataract and that due to palpitation and heart disease he does not go out of the house. It was further stated that it is not possible for him to come to court to depose and in that event his life would be in danger. Under the circumstances it was prayed that the witness should be examined on commission at his residence at 18/1, Dr. Suresh Sarkar Road. Subsequently, a medical certificate dated 10th July, 1972 was produced on behalf of the opposite parties Nos. 1 and 2 in support of the statements made in the application. The petitioner filed an objection challenging the grounds made out in the application. It was asserted that Shri satish Chandra Ghosh's eye-sight was not defective and he was not suffering from any heart trouble or palpitation and that he is quite hale and hearty. The petition of objection was supported by an affidavit by an employee of the next friend of the petitioner. The learned Subordinate Judge disposed of the application simply by saying "considered the affidavit sworn by one of the employees of the plaintiff and not by his guardian and the medical certificate. In my opinion there is sufficient ground for examining the witness on commission. The learned Subordinate Judge disposed of the application simply by saying "considered the affidavit sworn by one of the employees of the plaintiff and not by his guardian and the medical certificate. In my opinion there is sufficient ground for examining the witness on commission. "On 5th August 1972, the petitioner filed an application under section 151 for reconsideration of the order referred to above. The said application was supported by an affidavit affirmed by the next friend of the petitioner. On 5th of August, 1972, the learned Judge upon an application filed by the opposite parties nos. 1 and 2 for shifting the date of peremptory hearing, was pleased to fix the date of hearing on 19th September, 1972. By another order being Order no. 131 dated 5th August, 1972 the learned Judge was pleased to direct that the petitioner's application under section 151 be put up on the date fixed for hearing. It is stated that the petitioner was under the impression that his application under section 151 would be taken up for hearing on 19th of September 1972. But it appears that on 7th August 1972 the petitioner's application was taken up and as the petitioner was absent the same was rejected. On the same day an application was filed an behalf of the petitioner stating all the facts and requesting the learned judge to keep the said petition on record. On August, 1972, another application was filed by the petitioner for setting aside the Order No. 132 dated 7th of August, 1972, and for restoration of the previous application dated 5th of August 1972. This application was also rejected by the learned subordinate Judge. Being aggrieved by the aforesaid orders, the present application has been filed. Mr. Sarkar, learned Advocate appearing on behalf of the opposite parties, takes a preliminary point, namely, that this application under section 115 is not maintainable. It is submitted that the orders passed by the learned Subordinate Judge were quite within his jurisdiction. The learned Judge was quite within his right to exercise his discretion considering the facts and circumstances of the case. That discretion was judicially exercised and that being so, the present application is not maintainable. In support of his contention he refers to a decision reported in A. I. R. 1928 Calcutta 421 (Phanindra Krishna Dutta -v- Raja promatha Nath Malia. That discretion was judicially exercised and that being so, the present application is not maintainable. In support of his contention he refers to a decision reported in A. I. R. 1928 Calcutta 421 (Phanindra Krishna Dutta -v- Raja promatha Nath Malia. In this case also an application was filed against an order passed under Order 26 Rule 1 of the Code. It was held "where a court is satisfied under Rule 1 Order 26 that the person is sick and unable to attend Court and then has exercised its discretion as to whether in those circumstances a commission should issue and has issued a commission, that discretion cannot be revised under section 115, Civil Procedure Code, whether the judgment of the Court below on this interlocutory application consists of a complete treatise on the subject or an incomplete treatise on the subject. "But it may be noted that in this case their Lordships held "the question is whether it is a case in which it has been established by reason of the illness of the defendant that the prayer for examination on commission must in justice be granted." It has further been held "it is quite clear that in a case of this character the whole jurisdiction to make such an order arises out of the fact, which has to be found, of the sickness of the person in question." Their Lordships were, therefore, conscious of the fact that there are two parts in Order 26 Rule 1. The first part is when the Court is satisfied about sickness, then the court is vested with jurisdiction and then it is for the court to exercise discretion which is the second part. 3. MR. Saktinath Mukherjee learned advocate for the petitioner contends that before allowing an application under Order 26 Rule 1 the Court will have to be in the first instance satisfied whether the witness due to sickness or infirmity is unable to attend it. It is only when the Court is such satisfied he can dispose of the application by exercising his discretion either in favour of the applicant or against him. Mr. Mukherjee refers to a decision reported in A. I. R. 1924 Calcutta 971 (Punchkari Mitra -v- Panchanan saha and others. It has been held "the question as to the propriety of allowing evidence to be taken on commission is not a question of discretion at all. Mr. Mukherjee refers to a decision reported in A. I. R. 1924 Calcutta 971 (Punchkari Mitra -v- Panchanan saha and others. It has been held "the question as to the propriety of allowing evidence to be taken on commission is not a question of discretion at all. That question ultimately resolves itself into a question as to whether a court can be said to have acted with jurisdiction in taking away from a litigant the rights which he undoubtedly has under the law of having his witness brought before the court and examined before the court in accordance with the normal procedure; in other words whether the circumstances disclosed in the case gave the court jurisdiction to depart from the usual course prescribed by law. The court on the evidence before it has to arrive at a necessary conclusion whether it is or is not necessary for the purpose of justice that the ordinary mode in which evidence is to be taken should be departed from. " 4. MR. Mukherjee to support his contention first refers to a decision reported in a. I. R. 1923 Privy Council 73 (Satis Chandra Chatterji and others -v-Kumar Satish Kantha Ray and others. The Judicial Committee laid down "evidence taken on commission should only be permitted to be used whether the witness is proved to be too ill to give his evidence in court or his absent or for other sufficient reason" Mr. Mukherjee supports that in this case it has not at all been proved that the witness was ill and was unable to attend court. That being so, the learned court below was not competent to exercise his discretion. This is certainly a point touching jurisdiction and hence revisable by the High Court on an application under section 115 of the code. Mr. Mukherjee next refers to a decision reported in A. I. R, 1986 S. C. 1431 (S. Rama Iyer deceased thereafter his heirs and legal representatives -v- Sundaresa Ponnapoondar. This is certainly a point touching jurisdiction and hence revisable by the High Court on an application under section 115 of the code. Mr. Mukherjee next refers to a decision reported in A. I. R, 1986 S. C. 1431 (S. Rama Iyer deceased thereafter his heirs and legal representatives -v- Sundaresa Ponnapoondar. It has been held "the decision of the subordinate Court on all questions of law and fact not touching its jurisdiction is final and, however, erroneous such a decision may be, it is not revisable under sub-s. (a) and (b) of section 115, C. P. C. On the other hand, if by an erroneous decision on a question of fact or law touching its jurisdiction, e. g. on a preliminary fact upon the existence of which its jurisdiction depends, the Subordinate Court assumes a jurisdiction not vested in it by law or fails to exercise a jurisdiction so vested, its decision is not final, and is subject to review by the High court in its revisional jurisdiction under the sub-sections. " 5. MR. Mukherjee submits that in the present case at the first instance the Court will have to decide the question of fact namely whether the circumstances are such that it is not possible for the witness to come to court. This decision is on a question touching the court's jurisdiction. The discretion to allow an application or to reject it comes subsequently and that being so, when the decision on a fact touching the question of jurisdiction is in dispute that decision can very well be challenged in the High Court. Considering the facts and circumstances of the case and the legal position we are of the opinion that the application is maintainable. 6. MR. Mukherjee next submits that the orders passed by the learned Subordinate Judge cannot be supported as it appears from the order passed on 11th July, 1972, that the learned Judge took into consideration only the affidavit filed on behalf of the petitioner and the medical certificate filed on behalf of the opposite parties. There is an indication that the affidavit filed on behalf of the plaintiff was not relied as it was by one of the employees of the plaintiff and not by his guardian. Nothing was said with regard to the medical certificate and it seems that the learned Judge relied on the medical certificate. There is an indication that the affidavit filed on behalf of the plaintiff was not relied as it was by one of the employees of the plaintiff and not by his guardian. Nothing was said with regard to the medical certificate and it seems that the learned Judge relied on the medical certificate. It has already been stated that the medical certificate was not filed along with the application. The same was filed subsequently. Mr. Mukherjee submits that in this case the most important thing to consider is that the learned Judge relied on inadmissible evidence, namely, the medical certificate, which was never proved. The opposite parties did not take any step to prove the medical certificate and that being so, the learned subordinate Judge could not have based his decision on the said medical certificate. In this connection Mr. Mukherjee first refers to a decision reported in A. I. R. 1935 Madras 659 (Sarada -v- Nhatiayala Devaki. This is a Bench decision and it has been held "there is nothing in the Evidence act or outside it, which makes a certificate given by a medical practitioner by itself evidence at all. The court should reject it altogether and insist either on examination on oath of the doctor who has given the certificate or at least an affidavit by him." 7. MR. Mukherjee next refers to a decision reported in A. I. R. 1937 Madras 407 (Perumal Mudaliar -v- South Indian, railway Co. Ltd.. It has been held that "it is quite obvious that the opinion of an expert must be given orally and that a mere report or certificate by him cannot possibly be evidence. Unless he goes into the witness box and gives oral evidence, there can be no cross-examination of the expert at all." 8. ON the point that a medical certificate by itself is not evidence unless it is proved by the doctor granting the certificate or by an affidavit made by him, Mr. Mukherjee relies very much on the Bench decision reported in A. I. R. 1950 Calcutta 173 (Sris Chandra nandi -v- Annapurna Ray. In this case an application was filed for examination on commission and in support of the said application a medical certificate was filed. The learned Judge relying on the medical certificate allowed the prayer for the examination on commission. In this case an application was filed for examination on commission and in support of the said application a medical certificate was filed. The learned Judge relying on the medical certificate allowed the prayer for the examination on commission. This court held that "medical certificate tendered in support of an application for the issue of a commission for the examination of a witness on the ground of illness is inadmissible in evidence being the worst form of hearsay evidence. The doctor himself should be called in evidence" Mr. Mukherjee submits that the facts of the present case are identical with the facts of the case reported in A. I. R. 1950 Calcutta 173, and that being so, it must be held in this case also that the learned Judge in allowing the application for commission committed illegality as he based his decision on inadmissible evidence. Mr. Mukherjee also challenges the subsequent orders. He draws our attention to the fact that by order no. 131 dated 5th August 1972 it was stated that the plaintiff's petition under section 151 C. P. C. would be put up on the date fixed for hearing. By order No. 130 of the said date the date for peremptory hearing was fixed on 19th September 1972. It however appear that by Order No. 129 dated 29th July 1972 the following order was passed :- "order sheet still not received from the copying department. Put up on 7th August 1972 for further order pending receipt of the order-sheet." The petitioner reasonably for the orders referred to above had the impression that his application would be taken up for hearing on 19th of September 1972. But his application was taken up on 7th of August 1972 which was never the date fixed for taking up the petitioner's application under section 151. All these facts were brought to the notice of the learned court by filing an application and subsequently another application was filed for setting aside the order dated 7th of August 1972, but that application was summarily rejected without assigning any reason. From the set of facts as it appears from the orders referred to above we are of the opinion that the matter was not dealt with properly by the learned court below. For the reasons stated above we are of the opinion that the order passed by the learned Subordinate Judge cannot be upheld. 9. From the set of facts as it appears from the orders referred to above we are of the opinion that the matter was not dealt with properly by the learned court below. For the reasons stated above we are of the opinion that the order passed by the learned Subordinate Judge cannot be upheld. 9. IN the result, the application succeeds and the Rule is made absolute there will be no order as to costs. Let the records go down immediately. The opposite parties nos. 1 and 2 are however permitted to renew their application for examination on commission of the witness if they think necessary to do so, and if such an application is filed the learned Subordinate Judge is directed to dispose of the said application in accordance with law and in the light of the observations made above. The application for the appointment of receiver is not pressed and is rejected. Rule made absolute.