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2013 DIGILAW 448 (MP)

Chandraprakash Agrawal v. Nathuram Ji Lakhera

2013-04-03

Rajendra Menon

body2013
ORDER 1. Petitioner has filed this writ petition mainly on the ground that an application submitted by the petitioner for his cross-examination by appointing a Commission under Order 26 Rule 1 of the Code of Civil Procedure, has been rejected and, therefore, interference be made. 2. Respondents 1and 2 have filed the suit in question for eviction on the grounds contemplated under section 12(1)(f) of the MP Accommodation Control Act and arrears of rent. Petitioner is defendant in the suit in question and in the said suit petitioner has submitted his evidence by way of an affidavit under Order 18 Rule 4 CPC, on the ground that he is more than 68 years of age, he has some cardiac probems for which he is undergoing treatment since October 2011. Further submitting that he is undergoing some treatment from the Neurosurgerey Department of Bhopal Memorial Hospital and Research Centre, the petitioner submitted the application seeking appointment of Commission for his examination. This application has been rejected by the impugned order and, therefore, petitioner is before this Court challenging the aforesaid order. 3. Placing reliance on a judgment rendered by a Bench of this Court in the case of Smt. Annapurna Dubey Vs. Champalal @ Chaua and another, 2009(1) MPWN 82 = 2009(1) MPHT 144 , learned counsel argued that when the witness is an old senior citizen suffering from various ailments, a Commission should be appointed for cross-examination and in the facts and circumstances of the present case, the learned Court has committed error in rejecting the application. Accordingly, Shri Usmani prays for interference into the matter. 4. I have heard learned counsel for the petitioner at length and perused the records. 5. A perusal of the order impugned dated 21.2.2013 passed by the Court below goes to show that for rejecting the application filed by the petitioner, a detailed two page order has been passed by the Court, petitioner submitted the application for his examination by appontment of a Commission and two grounds were raised by the petitioner. The first ground raised was that the petitioner is a cardiac patient, he is undergoing treatment and, therefore, he is unable to come to the Court. The second canvassed was that for certain neurological problems he is undergoing treatment from Bhopal Memorial Hospital and Research Center and produced certain medical documents with regard to this treatment from 3.10.2011 to 15.10.2011. The first ground raised was that the petitioner is a cardiac patient, he is undergoing treatment and, therefore, he is unable to come to the Court. The second canvassed was that for certain neurological problems he is undergoing treatment from Bhopal Memorial Hospital and Research Center and produced certain medical documents with regard to this treatment from 3.10.2011 to 15.10.2011. All these documents were evaluated by the Court and the Court found that the petitioner in the application has stated that all of a sudden on 4.2.2013 he has developed some heart problems and, therefore, he was admitted in Chirayu Health and Medicare Private Limited and the Doctors have advised complete bed rest and as such he cannot come to the Court. It has been found by the Court that Chirayu Health and Medicare Private Limited is in the premises of petitioner’s house and the possibility of his having obtained the certificate from the said hospital cannot be ruled out. 6. It has been found by the Court that the documents filed by the petitioner go to show that he was undergoing treatment in Bhopal Memorial Hospital and Research Centre in October 2011 and even the heart problem is of the year 2011. Finding that the petitioner is unnecessarily delaying the matter and is only creating hinderance in speedy disposal of the case, the application has been rejected. 7. On going through the reasons given by the Court on scanning the documents filed by the petitioner along with his application under Order 26 Rule 1 CPC i.e. ... Annexure P/3, I find that the documents filed by the petitioner are not sufficient enough to substantiate his contentions. The document filed by the petitioner mainly in support of his contention is a certificate dated 17.2.2013 - issued by Chirayu Health and Medicare Private Limited, Bhopal. This certifcate only shows that the petitioner has been suffering from certain heart problems and he was treated in the Hospital for 10 days from 17.2.2013, and he is advised bed rest. However, no supporting medical reports, prescriptions or any other document in support of the treatment undertaken by the petitioner in Chirayu Health and Medicare Private Limited, for the period of 10 days, is filed. Even the bills for the treatment, prescription and other medical documents are not produced. However, no supporting medical reports, prescriptions or any other document in support of the treatment undertaken by the petitioner in Chirayu Health and Medicare Private Limited, for the period of 10 days, is filed. Even the bills for the treatment, prescription and other medical documents are not produced. The other document is a medical certificate issued by Christian Medical College and Hospital, Vellore on 5.11.1973 with regard to certain heart problems of the petitioner. Similarly, the other documents filed by the petitioner are with regard to his treatment in Manipal Hospital in February 1995; treatment in the Department of Neurosurgery, Bhopal Memorial Hospital and Research Center in October 2011; and Pathology Report with regard to treatment of the petitioner in the year 2010 and 2011. 8. The documents produced by the petitioner do not show that he is suffering from any ailment as is indicated in the application under Order 26 Rule 1 CPC, and the Court below after scrutiny of these documents has found that the petitioner is only delaying the matter and is somehow avoiding conclusion of the trial. It is found that the suit is pending since 2008, more than five years have passed and petitioner is avoiding recordings of the evidence. It is found that initially ex-parte proceedings were held against the petitioner, the same has been rested and now petitioner is delaying the proceedings. The reasons given by the Court and the action taken for rejecting the application cannot be termed as erroneous, illegal or perverse to such an extent that interference at this interlocutory stage in a proceedings under Article 227 of the Constitution is called for. 9. It is case where the petitioner, a tenant, is trying to delay the proceedings and the excuse given by him expressing his inability to come to the Court for giving evidence is not established or substantiated by the medical evidence and the matter, this writ petition is dismissed.