Judgment Heard Shri Nitin Sardessai, learned counsel appearing for the petitioner and Shri P. A. Kamat, learned counsel appearing for the respondents. 2. Rule. Heard forthwith by consent of the learned Counsel. 3. The learned Counsel appearing for the respondents waives service. 4. The above petition challenges an order dated 09.08.2012 passed by the learned Civil Judge Senior Division, Quepem, in Regular Civil Suit No. 59/2006 whereby an application filed by the petitioner for appointment of a commissioner/officer for examining the petitioner by tendering an affidavit in evidence and to admit the documents in evidence under Order 18 Rule 4 and Order 26 Rule 1 of the Civil Procedure Code at Exhibit 40 came to be dismissed. 5. The petitioner filed an application on the ground that the petitioner is more than 87 years old and has undertaken two by-pass surgeries and at present he is confined to his house at Cacora Curchorem, Goa and his movements are totally restricted. It is further his contention that the petitioner and his wife are residing together and all his sons are residing separately on account of their uncordial relationship. It is further his case that on account of wrongful interference by the respondents, he was forced to file a suit to protect the suit property. It is further his case that he is forced to lead evidence in support of his case but however on account of his inability to travel up to the Court and again by climbing steps to the first floor of the Court premises to depose in the suit, he has filed an application to record his evidence on commission. The petitioner has also filed a medical certificate in support of his contention. 6. The application was opposed by the respondents disputing the claim of the petitioner that he was bed ridden. It is their case that the petitioner is very much in a position to depose in the open Court. Consequently, it is their further case that the commissioner can be appointed only for the purpose of cross examination after the affidavit in evidence is tendered and the documents are exhibited. The learned Judge after hearing the parties by the impugned order dated 09.08.2012 dismissed the application filed by the petitioner. 7. Mr. Consequently, it is their further case that the commissioner can be appointed only for the purpose of cross examination after the affidavit in evidence is tendered and the documents are exhibited. The learned Judge after hearing the parties by the impugned order dated 09.08.2012 dismissed the application filed by the petitioner. 7. Mr. N. Sardessai, learned Counsel appearing for the petitioner has assailed the impugned order essentially on the ground that the application filed by the petitioner is under Order 26 Rule 1 of Civil Procedure Code which inter-alia provides that the commissioner can be appointed for the purpose of recording evidence of persons who is exempted under this Code from attending the Court or who on account of sickness or infirmity are unable to attend the Court. The learned Counsel further pointed out that taking note of the fact that the petitioner is 87 years old and he is bed ridden which is supported by a medical certificate, the petitioner has established that he is entitled to be examined on commission within Order 26 Rule 1 of Civil Procedure Code. The learned Counsel further pointed out that such commission can always be appointed for recording evidence and in case there is any dispute with regard to exhibiting any documents relied upon by the petitioner, such objections can always be decided by the learned Judge. The learned counsel further pointed out that it is well settled that the commissioner is not delegated with any judicial functions but in case any objections are raised by the opposite party during the course of recording of evidence, the commissioner would have to take note of all the objections and refer the matter for decision to the learned Judge. The learned Counsel further pointed out that the petitioner does not dispute the fact that the documents are to be exhibited by the learned Judge. But however, considering that the commissioner is appointed in the circumstances as provided under Order 26 Rule 1 of the Civil Procedure Code, the commissioner can always attach the documents along with the deposition or affidavit of the witness and refer the matter to the learned Judge to consider the production of such documents in evidence. But however, considering that the commissioner is appointed in the circumstances as provided under Order 26 Rule 1 of the Civil Procedure Code, the commissioner can always attach the documents along with the deposition or affidavit of the witness and refer the matter to the learned Judge to consider the production of such documents in evidence. The learned counsel further pointed out that the learned Judge has considered the provisions of Order 18 Rule 4 of Civil Procedure Code without taking note that the application filed by the petitioner was also under Order 26 Rule 1 of Civil Procedure Code. The learned counsel further submitted that in the peculiar facts of the present case as the petitioner is not in a position to come personally to the Court to depose, the learned Judge was not justified to exercise its discretion in dismissing the application filed by the petitioner. The learned counsel as such submits that the impugned order deserves to be quashed and set aside. 8. On the other hand, Shri P. A. Kamat, learned Counsel appearing for the respondents has pointed out that whether the petitioner is entitled to be examined by the commission is a matter within the discretion of the learned Judge. Shri Kamat, the learned Counsel does not dispute the fact that in case the circumstances require, the learned Judge is not precluded from appointing commission to record the evidence of the witness. The learned Counsel further pointed out that it is well settled that the documents are to be exhibited by the Court. Considering the said aspect, the learned Counsel further pointed out that it is within the discretion of the Court to allow the appointment of the commission. The learned Counsel in support of his submissions has relied upon the judgment of this Court reported in 2010(1) Mah. L. J. 402 in the case of Harish Vithal Kulkarni and another V/s Pradeep Mahadev Sabnis. 9. Order 26 Rule 1 of Civil Procedure Code provides thus: “1. Cases in which Court may issue commission to examine witness.-Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it. Cases in which Court may issue commission to examine witness.-Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it. [Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do. Explanation.-The Court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.] Order 26 Rule 4A of Civil Procedure Code provides thus: “[4-A. Commission for examination of any person resident within the local limits of the jurisdiction of the Court.-Notwithstanding anything, contained in these rules, any Court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.]” 10. On plain reading of the said provisions, it cannot be disputed that in cases in which a witness is sick or unable to attend the Court, it is always open to the Court to record evidence of such witness on commission. Rule 4A further provides that in the interest of justice, the Court can appoint a Commissioner to record evidence. In the course of recording of such evidence, the commissioner is always entitled to take any documents sought to be relied upon by a party and in case there are any objections, the commissioner would have to record such objection and refer the matter to the learned Judge for appropriate decision. It cannot be disputed that the commissioner may not be able to pass any order admitting any documents in evidence or be permitted to mark such documents as an exhibit. This exercise would have to be done by the learned Judge after the commissioner refers the matter to the learned Judge. It cannot be disputed that the commissioner may not be able to pass any order admitting any documents in evidence or be permitted to mark such documents as an exhibit. This exercise would have to be done by the learned Judge after the commissioner refers the matter to the learned Judge. In fact, Order 26 Rule 7 of the Civil Procedure Code imposes an obligation to the commission to return the commission along with the evidence recorded by him during the course of such commission. Order 26 Rule 8 of the Civil Procedure Code clearly provides in what circumstances such deposition can be read in evidence. In this context, it is clearly provided under Order 26 Rule 8 of CPC that the learned Judge would have to pass an appropriate order accepting such deposition recorded by the commissioner to be read in evidence. In the course of such exercise, the learned Judge can always consider any objections and/or decide as to whether any documents which have been produced before the commissioner can be marked as an exhibit. For the purpose of exhibiting the documents, the personal present of the witness may not be necessary. In the present case, the petitioner has got material on record to suggest that the petitioner is confined and/or sick which does not permit him to come to the Court personally. In such circumstances, the learned Judge can always issue a commission under Order 26 Rule 1 of Civil Procedure Code for recording of evidence. The findings of the learned Judge to the effect that such commission can be done only for the purpose of cross examination is not justified. It is to be noted that this is not a case where the evidence is being recorded on commission under Order 18 Rule 4 of the Civil Procedure Code. The Civil Procedure Code clearly provides that in specific situation under Order 26 Rule 1 of CPC the Court can appoint a commissioner for recording evidence. The Full Bench of this Court in 2008(6) Mah. L. J. 886 in the case of Hemendra Rasiklal Ghia V/s Subodh Mody, has observed at paragraph 92 thus: “92. The Civil Procedure Code clearly provides that in specific situation under Order 26 Rule 1 of CPC the Court can appoint a commissioner for recording evidence. The Full Bench of this Court in 2008(6) Mah. L. J. 886 in the case of Hemendra Rasiklal Ghia V/s Subodh Mody, has observed at paragraph 92 thus: “92. In view of the above analysis of the statutory provisions and our discussion, we, accordingly, articulate our conclusions as follows: Answer to Question-A: As already noticed, - (i) objection to the document sought to be produced relating to the deficiency of stamp duty must be taken when the document is tendered in evidence and such objection must be judicially determined before it is marked as exhibit; (ii) Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit; (iii) Objection to the document which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final judgment in the case. The Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated hereinabove. As we have already added a word caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent miscarriage of justice and expedite trial, which is the dire need of the time. Answer to Question-B: The objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII, Rule 4 of Civil Procedure Code can be admitted at any stage reserving its resolution until final judgment in the case as held in Ameer Trading Corpn. Answer to Question-B: The objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII, Rule 4 of Civil Procedure Code can be admitted at any stage reserving its resolution until final judgment in the case as held in Ameer Trading Corpn. Ltd., V/s Shapoorji Data Processing Ltd., (supra).” In Harish Vithal Kulkarni ( supra ) the learned Full Bench has held that the distinction between the two provisions indicate the extent of discretion that has been given to the Court to decide whether the cross examination of witness whose affidavit has been taken on record should be conducted in Court or before the commission. It has been further observed that at the same time, since the commissioner is not competent to decide the question of proof or admissible of documents in evidence, the discretion is given to the Court either to decide such aspect before sending the matter to the commissioner for recording of the cross examination or decide this issue after the report is submitted by the commissioner. 11. Considering the judgment of the Full Bench of this Court referred to in the case of HemendraRasiklal Ghia ( supra), it cannot be disputed that the Court has discretion to consider the facts and circumstances and in the interest of justice to decide any procedure which would be appropriate in the circumstances of the case. Considering the said judgment of this Court and in view of the Order 26 Rule 1 of the Civil Procedure Code, the learned Judge was not justified to pass the impugned order by refusing the appointment of the commission. 12. In view of the above, I pass the following: (i) The impugned order dated 09.08.2012 cannot be sustained and deserves to be quashed and set aside. (ii) Subject to the observations made herein above, Rule is made absolute in terms of the prayer (a). (iii) The petition stands disposed of accordingly.