Petitioner challenged rejection of her application to adduce evidence through a commission, citing illness. The court found the medical prescription showed no bed rest and that she had attended a Notary while allegedly ill; discretion under Order XXVI was properly exercised. Revisional application dismissed.
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06.04.2026
Item no. ML 8 Court No. 06
Asraf, A.R.(Ct.)
In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side
Case No.
CO 1003 of 2026
In the matter of :
SMT. ATRAYEE BANERJEE
…Petitioner
VS.
DR. PINAKI MUKHERJEE
…Opposite Party
For the Petitioner :
Mr. Nirmalya Kumar Das Mr. Jahangir Hossain
….Advocates
1. This revisional application lays challenge to an order dated December 11, 2025 passed by the learned Additional Principal Judge, Family Court, Calcutta thereby the petitioner’s application under Order XXVI Rules 1 and 2 read with Order XXVI Rule 4 and Section 151 of the Code of Civil Procedure, 1908 has been rejected.
2. Learned advocate appearing for the petitioner submits that such application was necessitated since the petitioner was unable to attend Court for adducing evidence inasmuch as she was ill. It is submitted that despite the fact that medical document in support of her illness had been annexed to the application, the learned Trial Court has rejected such application without appreciating the grounds made out by the petitioner.
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3. Having heard the learned advocate appearing for the petitioner and having considered the materials on record, this Court is unable to find any reason to interfere with the order impugned.
4. The learned Trial Court has considered the medical prescription which is the only document annexed to the petitioner’s application under Order XXVI Rules 1 and 2 read with Order XXVI Rule 4 of the Code, and has come to the conclusion that the same does not make out any case for allowing adduction of evidence through commission.
5. The medical prescription which had been annexed to the application under Section 151 of the Code and which forms an annexure to the present revisional application as well (at page 34 thereof) does not reveal that the petitioner was prescribed or advised “bed rest” for even a single day.
6. That apart, the learned Trial Court has found that the petitioner had duly attended the Notary Public at Alipore Judges Court on December 9, 2025 for the purpose of affirming the affidavit in support of the said application and that the prescription that was annexed to it was of a subsequent date. The provisions of Order XXVI Rules 1, 2 and 4 of the Code are not invokable by a litigant or witness
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as a matter of right but the same lie within the zone of discretion of the Court. The learned Trial Court has exercised its discretion in a sound manner.
7. In such view of the matter, this Court finds no reason to interfere with the order impugned.
8. Accordingly, the instant revisional application being CO 1003 of 2026 stands dismissed.
9. There shall be no order as to costs.
10. Urgent photostat certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
( Om Narayan Rai, J. )
1 issue framed by the court
Should the Family Court order rejecting adduction of evidence through commission under Order XXVI be reversed?
1 provisions across 1 enactments
SMT. ATRAYEE BANERJEE
DR. PINAKI MUKHERJEE
Om Narayan Rai
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
