Bahadur Singh Vs Sambhunath Naik

Instant petition is filed by the petitioner challenging the impugned order dated 18^th September, 2024 as at Annexure-5 passed in connection with C.S. No.556 of 2014 by learned Additional Civil Judge (Senior Division), Baripada on the grounds stated therein.

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Mr. Mohanty, learned counsel for the petitioner submits that the petitioner and opposite party reached at a settlement and jointly moved the learned court below with an application for compromise dated 20^th July, 2015 but the same was not entertained and disposed of while denying the request for issuance of the Commission to record the evidence of the petitioner, who is bedridden and unable to move to attend the Court. In support of such claim, Mr. Mohanty, learned counsel refers to the Medical Certificate as at Annexure-6. The submission is that the petitioner is sick and confined to bed for the last six years and in view of the compromise between him and the opposite party, such an

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application as per Annexure-3 was moved and at the same time, a request in terms of Order 26 Rule 1 CPC for appointment and deputation of Commissioner to examine him was moved.

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The suit is instituted by the petitioner for declaration of the right, title and interest with other reliefs as made to reveal from a copy of the plaint at Annexure-1. Though, the WS was filed by the opposite party as per Annexure-2, he had a compromise with the petitioner with an application jointly filed in that regard and thereafter, a request for deputation of the Commissioner as per Order 26 Rule 1 CPC but it has been declined. Upon considering Annexure-6, a copy of the Medical Certificate dated 9^th November, 2021, it is made to suggest that the petitioner is unable to walk and is confined to bed. Mr. Mohanty, learned counsel for the petitioner submits that the petitioner is still bedridden even now. Considering the above facts and since, there has been no objection from the side of the opposite party and it was a request for appointment of a Commissioner to record evidence of the petitioner with regard to the compromise between the parties, the Court is of the view that there was no such reason for learned court below to refuse the same even after such compromise. When such an application under Order 26 Rule 1 CPC was filed, learned court below concluded that the same is an abuse of process of law as multiple applications have been filed earlier. The Court is of the view that such a conclusion was unwarranted especially when the illness of the petitioner is pleaded supported by a Medical Certificate and that the request was to depute and appoint a Pleader Commissioner to record his evidence with regard to the compromise reached at the meantime. In other words, the Court is inclined to hold that the impugned order as per Annexure-5 cannot be sustained in law and hence, to be interfered with.

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Accordingly, it is ordered.

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In the result, the CMP stands allowed. Consequently, the impugned order dated 18^th September, 2024 passed in C.S. No.556 of 2014 by learned Additional Civil Judge (Senior Division), Baripada is hereby set aside with a direction to depute a Pleader Commissioner in terms of Order 26 Rule 1 CPC with the evidence of the petitioner to be recorded with reference to Annexure-3 and thereafter, to proceed and to dispose of the suit at the earliest preferably within a period of three weeks from the date of such appointment of the Commission. In the circumstances, however, there is no order as to costs.

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Urgent copy of this order be issued as per rules.

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(R.K.Pattanaik) Judge

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Rojina

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Signature Not Verified

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Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 03-May-2025 14:40:25

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Bahadur Singh v. Sambhunath Naik

Case brief

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Bahadur Singh v. Sambhunath Naik

Case brief

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