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2020 DIGILAW 342 (CAL)

Pranati Ghosal v. Prakriti Malhotra

2020-03-03

SAHIDULLAH MUNSHI

body2020
ORDER : This application has been filed by the plaintiff on 18.12.2017 seeking following orders : "Your petitioner therefore humbly prays Your Lordships for the following orders:- (a) An order be passed appointing a fit and proper person as Commissioner to record the Evidence of Key a Guha being the attesting witness of the last Will and Testament of the said Pranati Ghosal dated 23rd February, 2014 on commission to be held in Kolkata on such terms and conditions as this Hon'ble Court may deem fit and proper; (b) The Commissioner so to be appointed herein may be directed to file his report with the Department of this Hon'ble Court within such time as this Hon'ble Court may deem fit and proper; (c) An order be passed directing the Registrar Original Side to take appropriate steps for carrying the records for the above suit in the aid of the said commission; (d) Costs of an/or incidental towards the commission proceeding to be caused in the cost; (e) Such further and/or other order or orders be passed and/or direction or directions be given as this Hon'ble Court may deem fit and proper." 2. In the application it has been offered by the petitioner that one Smt. Keya Guha is one of the attesting witnesses of the Last Will and Testament of Pranati Ghosal dated 23.02.2014. The said Keya Guha is not only the attesting witness of the said last Will and Testament but also close family friend, enjoying a long association with the family of the deceased and knows the petitioner and the caveatrix from their childhood. It has, therefore, been contended that her testimony is of paramount importance for the substantial adjudication of the instant lis. It has been stated on oath by the petitioner that the said Keya Guha is about 70 years of age and has been suffering from various ailments. If it is taken to be true, she was undergoing treatment from celulitis (swelling and water retention under the soles of the feet) and osteoarthritis and as such she has extreme difficulty in walking and is unable to stand for a continued period. Apart from the above she is also suffering from diabetes, hypertension and ischemic heart diseases with lumbago and a ssiaemiar. According to the petitioner for the aforesaid reasons it would not be possible for the said Keya Guha to adduce evidence in Court. Apart from the above she is also suffering from diabetes, hypertension and ischemic heart diseases with lumbago and a ssiaemiar. According to the petitioner for the aforesaid reasons it would not be possible for the said Keya Guha to adduce evidence in Court. In support of such statement the petitioner annexed doctors certificate dated 02.12.2017. 3. Pursuant to leave granted, however, the petitioner brought on record another affidavit affirmed on 17.01.2020 to agitate that she is still not recovered from the ailments. She was suffering earlier as indicated in her affidavit affirmed on 8th December, 2017 and in the present affidavit she has made out a further case that she is now 74 years of age, lives with her husband who is not only ailing from several severe chronic medical ailments from prior to 2017, she is also faced with rather severe and drastic situation, resulting from her husband's critical health condition who is virtually bed ridden. She had all alone to look after her ill husband who is presently at home undergoing a severe surgical operation. Another certificate of a doctor has also been annexed being annexure 'A' to the present affidavit. 4. Mr. Bose, learned senior counsel appearing for the petitioner submits that in view of the averments made in the petition and the provision of Order 26 Rule 4 and 4A of the Code of Civil Procedure. It is no more not available for the petitioner to apply before a Court for appointment of a Commissioner for recording her evidence. Mr. Chatterjee, learned senior counsel appearing for the defendant has vehemently opposed the stand taken by Mr. Bose's client, Mr. Chatterjee submits that the application does not deserve to be considered at all in view of the averment made therein. He submits that even without calling for affidavits the averments itself will be proved to be insufficient to consider the prayer of the petitioner on the face of it. Mr. Chatterjee pointed out that the certificate which has been annexed with the application affirmed on 08.12.2017 does not disclose any cause of action for invoking the jurisdiction under Order 26 of CPC. He further adds that the ground which has been shown are good grounds to avoid the Court. Mr. Mr. Chatterjee pointed out that the certificate which has been annexed with the application affirmed on 08.12.2017 does not disclose any cause of action for invoking the jurisdiction under Order 26 of CPC. He further adds that the ground which has been shown are good grounds to avoid the Court. Mr. Chatterjee submits that during examination of a witness his or her demeanour in the witness box is an important factor to be noticed by the Court in order to reveal the truth and Court may have occasion to also to be questioned. He submits that appearance of the witness in the box is the rule and Order 26 is the expectation. According to Mr. Chatterjee such exceptional circumstances have not been pleaded not only in the application affirmed on 8.12.2017, the petitioner has also not been able to make out any case for invoking the jurisdiction of a Court under Order 26 of CPC even by affirming the subsequent affidavit affirmed on 08.12.2017. In such circumstances Mr. Chatterjee submits that the application should be rejected with cost. 5. Heard the parties at length and I have gone through the material disclosed before this Court. Order 26 Rule 4 and 4A of the Code of Civil Procedure is relevant to be considered in the present case. 6. If the averments made in the application on oath is not disputed it will be presumed that the defendant is not in a position to deny the same. Therefore, this can proceed excepting that the petitioner has been suffering from the ailments at least since the day when the application was filed and her such suffering is still continuing. 7. Now question arises whether in such fact situation of the matter as contended by the petitioner whether the Court justifiably can exercise a jurisdiction under Order 26 of the Code. Order 26 Rule 4 and Order 26 Rule 4A are relevant in the present case and set out below: "O. 26 R.4. Persons for whose examination commission may issue:-. 7. Now question arises whether in such fact situation of the matter as contended by the petitioner whether the Court justifiably can exercise a jurisdiction under Order 26 of the Code. Order 26 Rule 4 and Order 26 Rule 4A are relevant in the present case and set out below: "O. 26 R.4. Persons for whose examination commission may issue:-. (1) Any Court may in any suit issue a commission [for the examination on interrogatories or otherwise of-] (a) any person resident beyond the local limits of its jurisdiction; (b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and (c) [any person in the service of the Government who cannot, in the opinion of the Court, attend without detriment to the public service: Provided that where, under rule 19 of Order XVI, a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice: Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do. (2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint. (3) The Court on issuing any commission may this rule shall direct whether the commission shall be returned to itself or to any subordinate Court. O.26 R.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." 8. Mr. Mr. Chatterjee, seriously contended that when a witness appears before the Court, Court has the occasion to note the demeanour of the witness and Court has also got the opportunity to ask questions to the witness but in a case where the evidence of a witness is recorded by a Commissioner such opportunity is not available. Admittedly, the former course if adopted it will enure to the benefit of the parties for revealing the truth. This concept has undergone a severe change after Civil Procedure Code has been amended in 1999. The amendment came into effect from 1st July, 2002. The new amendment was intended to expedite the case and reduce time required for disposal of a case. It will not be out of place to mention here that legislature has also, accordingly, amended Order 18 of the Code to allow cross-examination of a witness on commission. Newly inserted Rule 4A also does away the limitation imposed upon the Court for exercise their power under Rules 1 and 4. Powers given under Rule 4A can be exercised notwithstanding anything contained in Rule 1 and 4. Rule 4(1)(a) says that any person who is a resident beyond the local limits of the jurisdiction of the Court may in any suit issue a commission. There is no dispute with regard to the applicability of the principles underlying the provisions of Order 26 in case of a probate proceeding which is, after all, considered as a suit. Therefore, the principles under Order 26 are similarly applicable for this probate proceeding which has been numbered as TS no. 22 of 2017 arising from PLA No. 67 of 2017. Rule 4A overrides the provisions of Order 18 Rule 5(a)(b)(a). Order 18 of the Code deals with "Hearing of the suit and examination of witnesses". Therefore, the principles under Order 26 are similarly applicable for this probate proceeding which has been numbered as TS no. 22 of 2017 arising from PLA No. 67 of 2017. Rule 4A overrides the provisions of Order 18 Rule 5(a)(b)(a). Order 18 of the Code deals with "Hearing of the suit and examination of witnesses". Rule 5(a)(b) of Order 18 is set out below: "O.18 R.5:- How evidence shall be taken in appealable cases.- In cases in which an appeal is allowed, the evidence of each witness shall be, - (a) taken down in the language of the Court, - (i) in writing by, or in the presence and under the personal direction and superintendence of, the Judge, or (ii) from the dictation of the Judge directly on a typewriter; or (b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge." 9. Expanding the scope of appointment of a commissioner for recording the evidence where a person resides outside the local limits of the Court as specified in Rule 4(1)(a) by way of amendment under the authority of Rule 4A. The Court can also appoint even when the witness resides within the local limits of the Court's jurisdiction. However, the evidence so recorded by the Commissioner shall be read in evidence. Even if a Commissioner is appointed under Order 26 Rule 4A for recording the evidence as contemplated under Order 18 Rule 1 and 2 of CPC cannot be bypassed. 10. In such circumstances this Court holds that this is a fit case where Commissioner may be appointed to record evidence of the witness namely, the attesting witness for the plaintiff Kaya Guha. Mr. Goutam Ray, learned advocate practicing in this Court is appointed as Commissioner to record the evidence of Smt. Keya Guha and to file the return before this Court within a period of two months from the date of communication of the order. The Commissioner shall be entitled to take the assistance of such hands to assist him according to his choice and for the said purpose the learned Commissioner shall be paid a remuneration amounting to Rs. 1,00,000/- (Rupees One Lakh) only, per sitting. Remuneration for the assistants shall be mutually decided by the Commissioner and the petitioner and be paid separately by the petitioner. 11. 1,00,000/- (Rupees One Lakh) only, per sitting. Remuneration for the assistants shall be mutually decided by the Commissioner and the petitioner and be paid separately by the petitioner. 11. Let the other two applications being numbered GA 3759 of 2017 and GA 1271 of 2018 come up for hearing at the top of the list on 17th March, 2020 under the heading "New Application" at 3.30 P.M.