Dismissed

Manoj Readymade Storse and Anr. v. Vivek Agrawal and Others

Chhattisgarh HC5 Sept 2008WP227/4903/2008

Case brief

AI extract

What is this about?

This writ petition challenged an order rejecting an application for commission of examination of a witness under CPC Order XXVI. The High Court held that there was no perversity or illegality. It dismissed the petition but allowed a future application after two months considering the witness's physical problem.

What did the court decide?

Writ petition dismissed at the motion stage; leave to file fresh commission application after two months granted.

Manoj Readymade Storse and Anr. Vs Vivek… — Civil Procedure and Limitation | Chhattisgarh HC (2008)

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HiGM COURT OF CHHATTiSGARH LBILASPUR

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WRiT PETmON (2271 N0.4§03OF 2008

PETJTIONERS^

DEFENDANTS

Manoj Readymade Stores, Through Gopiram Agrawal, S/o KundanSaj Agrawa!, aged about 60 years, Occupation Business, R/o Kotara Road, Near Sattigudi Chowk, Raigarh, Tahsii &. District Raigarh (CG).

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Gopiram AgrawaS, S/o Kundanlal Agrawat, aged about 68 years, Occupation Business, R/o Kotera Roati, Near Sattigudi Chowk, Raigarh, Tahsi! & District Raigarh (CG).

Versus

li1r—i..jw1

RESPONDENTS/ 1.

PLAENTIFFS

Vivek Agrawal, S/o Paramanand Agrawai, aged about32 years.

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Ashish Agrawal, S/o Paramanand Agrawal, aged about 26 years.

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Paramanand Agrawal, S/o Late Biharilal Agrawal, aged about 55 years, Occupation Business.

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All R/o Subhash Chowk, Rajgarh, Tahsil & District Raigarh (CG).

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(Writ petition under Articte 227 of the Constitutlon of india)

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Single Bench : Hon'ble Shri K, AgniSiotri, J,

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Present: Shri Santosh Kuamr Tiwari, counsei for the petitloners.

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ORALORDER

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(Passed on this 5th day of September, 2008)

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Being aggrieved by the order dafed 22-8-2008 (Annexure-P/1) passed by the Fourth Additional District Judge (Fast Track Court), Raigarh, jn Cjyjl Suit No.7-A/2004 (Vjvek Agrawat & Others vs. JVIanoj Readymade Stores & Another), whereby the learned Additionai District Judge rejected the applicatlon fited by the petitioners/defendante under Order XXVI Rule 1, 2 and 4 of the Code of Cjyii Procedure, 1908 (for short 'thB CPC') claimjng issuance of commission of examinatjon on interrogatives of the petitjoner/defendant No.2, the petitioners/defendants have fded this petition under Article 227 of the Constitution of Indja.

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Shri Tiwari, learned counsel appearing for the petjtioners/ defendants, would submit that when the petitjoner/defendant No.2 went to meet his son, who is residing at a distance of 15CX) kms. from Raigarh i.e. Surat (Gujarat), feil i!J. Due to said iliness and old age, he is unable to move from there. The Doctor also advised him to take bed rest. The

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II' 1

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petitjoners/defendants^{movedanappiicatjonunderOrderXXVIRule1,2} ancS 4 of the CPC on the basis of aforesaid facts, praying for issue of commission for examination of the defendant No.2. The ctefendants are also ready to bear the expenses in this regard. The respondents/plaintjfls have not filed their repiy to the said appiication. The Additional District Judge without appredating the facts and circumstances of the case in its ietter and spirit as well as provisions of law regarding issue of commission rejected the application of the petitioners/ defendante by order dated 22-8-2008.

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i have heard learned counsei appearing for the petltioners/'defendants, perused the pleadings and the documents appended thereto.

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11 appears that the relief has been rejected on fhe ground that the defendant No.2 is the resident of Raigarh and the disputed properiy is also situated in Rajgarh, it is not at all possible to issue commission on the ground^{ofillness,whenthedefendantNo.2} is ready to come for examination after some time. Even the application was not filed within the stipujated period. There is no sufficient cause shown in the medical certificate also.

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This court in exercjse of its supervisory jurisdiction under Article 227 of the Constitution of India should refrain itself from interfering with the order passed by the court beiow, except Jn such caseswhere perversity, iliegality, irregularity or jurisdictional error is writ Sarge on the face of the record, which is not in the present case.

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In view of the foregoing reasons, this writ petition is dismissed at the motlon stage itself. However, if the petitjoners/defendants make an appiicatjon to produce the witness, after two months from the date of this order, the same may be considered, in accordance with law, keeping in view of the physical probiem of the defendant No.2.

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Consequently, I.A.No.1 stands disposed of.

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Sd/-

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Gowri

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SatishK.Agnihotn Judge

Manoj Readymade Storse and Anr. v. Vivek Agrawal and Others

Case brief

What is this about?

What did the court decide?

Manoj Readymade Storse and Anr. v. Vivek Agrawal and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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