Case Note & Summary
The petitioner, Shri Nilconta Gangadhar Sinai Amonkar, aged about 80 years (stated as 87 years in the application), filed a writ petition challenging an order dated 09.08.2012 passed by the learned Civil Judge Senior Division, Quepem, in Regular Civil Suit No. 59/2006. The impugned order dismissed the petitioner's application (Exhibit 40) for appointment of a commissioner/officer to examine 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 Code of Civil Procedure, 1908 (CPC). The petitioner contended that he was more than 87 years old, had undergone two bypass surgeries, and was confined to his house, making it difficult for him to attend court. The respondents opposed the application. The trial court dismissed the application without assigning adequate reasons. The High Court, after hearing both sides, found that the trial court had failed to exercise its discretion judiciously. The High Court noted that the petitioner's age and health conditions were sufficient grounds for appointment of a commissioner to record his evidence. The court set aside the impugned order and allowed the application, directing the trial court to appoint a commissioner to record the petitioner's evidence on affidavit and admit documents, with the respondents having the right to cross-examine the petitioner before the commissioner. The writ petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Appointment of Commissioner for Recording Evidence - Order 18 Rule 4 and Order 26 Rule 1 CPC - The petitioner, aged 87 years and having undergone two bypass surgeries, sought appointment of a commissioner to record his evidence by affidavit and admit documents. The trial court dismissed the application. The High Court held that the trial court failed to exercise its discretion judiciously and that the petitioner's age and health conditions justified the appointment of a commissioner to avoid hardship. The impugned order was set aside and the application was allowed. (Paras 4-8)
Issue of Consideration
Whether the trial court erred in dismissing the application for appointment of a commissioner to record the evidence of the petitioner, who is aged 87 years and has undergone bypass surgeries, by tendering an affidavit in evidence and admitting documents under Order 18 Rule 4 and Order 26 Rule 1 CPC.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 09.08.2012, and directed the trial court to appoint a commissioner to record the evidence of the petitioner by tendering an affidavit in evidence and to admit the documents in evidence, with the respondents having the right to cross-examine the petitioner before the commissioner. No order as to costs.
Law Points
- Order 18 Rule 4 CPC
- Order 26 Rule 1 CPC
- appointment of commissioner for recording evidence of aged and infirm witness
- discretion of court to allow examination on commission
Case Details
Writ Petition No. 650 of 2012
Mr. Nitin Sardessai (for petitioner), Mr. P. A. Kamat (for respondents)
Shri Nilconta Gangadhar Sinai Amonkar
Shri Vivekanand Nandakumar Sawardekar and Mrs. Rekha V. Sawardekar
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Nature of Litigation
Civil writ petition challenging an order dismissing an application for appointment of a commissioner to record evidence of an aged and ailing plaintiff.
Remedy Sought
The petitioner sought setting aside of the trial court's order dated 09.08.2012 and appointment of a commissioner to record his evidence by affidavit and admit documents.
Filing Reason
The petitioner, aged 87 years and having undergone two bypass surgeries, was confined to his house and unable to attend court; the trial court dismissed his application for appointment of a commissioner.
Previous Decisions
The trial court (Civil Judge Senior Division, Quepem) dismissed the application (Exhibit 40) in Regular Civil Suit No. 59/2006 on 09.08.2012.
Issues
Whether the trial court erred in dismissing the application for appointment of a commissioner to record the evidence of the petitioner under Order 18 Rule 4 and Order 26 Rule 1 CPC.
Submissions/Arguments
Petitioner: He is more than 87 years old, has undergone two bypass surgeries, and is confined to his house; therefore, a commissioner should be appointed to record his evidence by affidavit and admit documents.
Respondents: Opposed the application, but no specific grounds mentioned in the judgment.
Ratio Decidendi
The trial court failed to exercise its discretion judiciously in dismissing the application for appointment of a commissioner. The petitioner's advanced age (87 years) and health conditions (two bypass surgeries, confined to house) constitute sufficient grounds for appointment of a commissioner to record his evidence under Order 18 Rule 4 and Order 26 Rule 1 CPC, to avoid hardship and ensure justice.
Judgment Excerpts
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...
The learned trial Judge has not considered the fact that the petitioner is aged about 87 years and has undergone two by-pass surgeries...
In my view, the learned trial Judge has failed to exercise his discretion judiciously...
I find that the impugned order cannot be sustained and is liable to be set aside.
Procedural History
The petitioner filed Regular Civil Suit No. 59/2006 before the Civil Judge Senior Division, Quepem. During the suit, the petitioner filed an application (Exhibit 40) under Order 18 Rule 4 and Order 26 Rule 1 CPC for appointment of a commissioner to record his evidence by affidavit and admit documents. The trial court dismissed the application on 09.08.2012. The petitioner then filed the present writ petition before the High Court of Bombay at Goa, which was heard and allowed on 12.10.2012.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 18 Rule 4, Order 26 Rule 1
