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2003 DIGILAW 562 (CAL)

PRADIP KUMAR GOENKA v. MANJU BHARTIA

2003-11-19

J.K.BISWAS

body2003
J. K. BISWAS, J. ( 1 ) THIS application (G. A. No. 3317 of 2003) dated September 1st, 2003 has been filed by Smt. Lallta Devi Goenka, the defendant No. 2 in the suit. She prays for appointment of Commission under o. XXVI, R. 1 of the Code of Civil Procedure for recording her own evidence. ( 2 ) THE defendant No. 2 has stated that because of sickness she is unable to come to this Court to depose in the case. As evidence of her sickness she has annexed to this application a certificate purporting to be signed by a registered medical practitioner. This certificate dated July 28th, 2003 reads as follows : to WHOM IT MAY CONCERN this is to certify that Mrs. Lalita Goenka (Age : 71 years) w/o. Late Bhagawati Prasad goenka of 11, Ashoka Road, Kolkat-700027 has been under my treatment since april 2003 Degenerative Disc Disease of lumber Spine with Osteoporosis. She has had a recurrence of her back pain since 27-7-03 and she has been advised to take bed rest for 4 weeks after which I will review her to decide the further line of management. (SHAIKH HASSAN IQBAL) reg. No. 44085 of WBMC" ( 3 ) THE plaintiff No. 1 has filed an opposition dated September 22nd, 20o3 to this application. It has been stated in this opposition that the claim of sickness of the defendant No. 2 Is not a genuine claim, as will be evident from the fact that on August 29th, 2003 the defendant No. 2 went to Mumbai and came back on September 3rd, 2003. Besides stating that far from being sick, the defendant No. 2 is quite fit and has been moving from place to place without any difficulty, it has been alleged in this opposition that having remained out of town during the period from August 29th, 2003 to september 3rd, 2003 the defendant No. 2 could not have appeared before the Oath commissioner of this Court for affirming her this application on September 1st, 2003; and hence the transparent falsehood Indulged in by the defendant No. 2 is required to be considered by this Court for the purpose of granting liberty to the plaintiff No. 1 to approach the appropriate Forum for prosecuting her. It has been categorically stated in this opposition that the defendant No. 2 is not at all sick as claimed in her application. The plaintiff No. 1 has also contended in his opposition that having regard to the issues involved in the case the demeanour of the defendant No. 2 at the time of her examination is required to be observed by this Court, and hence she should not be permitted to be examined by commission. ( 4 ) THE allegations made in the opposition have been dealt with by the defendant no. 2 by filing her reply dated October 28th, 2003. In her reply she admitted the fact that she left the town on August 29th. 2003 and returned on September 3rd, 2003. She, however, denied that on September 1st, 2003 she could not have appeared before the Oath commissioner of this Court for affirming this application. She explained the situation by stating that on August 31st, 2003 she went to Nashik to attend Kumbh Mela; on the night of August 31st, 2003 she received phone call from Kolkata that she should come down to Kolkata for affirming the application; since the plaintiff No. 1 was likely to keep a watch on her movements, on the night of August 31st, 2003 she took a car and went to Mumbai; at 4 Oclock on the morning of September 1st, 2003 incognito she boarded a flight at Mumbai and reached kolkata at about 11. 30 a. m. ; from airport she came to this Court, affirmed the affidavit in support of this application and again went to the airport and incognito boarded a mumbai bound flight; on reaching Mumbai she again took a car and went back to Nashik on September 1st, 2003 itself. ( 5 ) AFTER hearing the learned counsel for the parties and after perusing the affidavits, i am of the view that this is an utterly frivolous and vexatious application. The defendant No. 2 has filed this application for issuing commission for her examination on the ground that due to sickness she is unable to attend this Court for deposing in the case as a material witness. The defendant No. 2 has filed this application for issuing commission for her examination on the ground that due to sickness she is unable to attend this Court for deposing in the case as a material witness. From the facts and circumstances which have come to light through the affidavits filed by the parties, and which have been briefly narrated before, I have absolutely no hesitation to hold that the claim of sickness made by the defendant No. 2 is not a genuine claim. From the exercise she allegedly undertook during the period from August 29th, 2003 to September 3rd, 2003, it is absolutely clear that the defendant No. 2 Is fully fit to attend this court for deposing in support of her case. The question whether she actually appeared before the Oath Commissioner on September 1st, 2003 and affirmed the affidavit in support of this application, In my considered view, is not relevant for the present purpose; and hence I find no reason to go into such question in the present proceeding. On the basis of the admitted facts I find no ground at all to hold that due to sickness the defendant No. 2 is unable to attend this Court for getting her evidence recorded in the case. I find that with a view to avoiding her examination In Court the defendant No. 2 has made out a false case of her grave sickness, when her sickness as reported by the medical practitioner admittedly does not prevent her from undertaking very arduous journey. Hence I am of the view that this is an utterly frivolous and vexatious application. ( 6 ) FOR the foregoing reasons this application is rejected with costs assessed at rs. 10,000/ -. The defendant No. 2 shall pay the costs to the plaintiff No. 1 within a fortnight. In default of payment of the costs the plaintiff No. 1 will be entitled to recover the same according to law. ( 6 ) FOR the foregoing reasons this application is rejected with costs assessed at rs. 10,000/ -. The defendant No. 2 shall pay the costs to the plaintiff No. 1 within a fortnight. In default of payment of the costs the plaintiff No. 1 will be entitled to recover the same according to law. ( 7 ) LIBERTY, as prayed for, is also granted to the plaintiff No. 1 to approach the appropriate Forum or Forums regarding the question of presence of the defendant No. 2 before the Oath Commissioner of this Court on September 1st, 2003 and also regarding all questions incidental thereto; and if such questions are agitated, the appropriate Forum or Forums will be free to decide the same without being influenced In any manner by this judgment and order. ( 8 ) URGENT xerox copy of this judgment and order may be supplied to the parties, if applied for, petition dismissed.