In this writ petition, Jamila Bibi sought quashing of an order rejecting a commission application. The Court held that the trial court's exercise of discretion under Order 26 Rule 2 CPC was not illegal or arbitrary. The writ was dismissed.
Writ application dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6060 of 2013
====================================================== 1. Jamila Bibi W/O Late Muzaffar Khan R/O Village- Pateri, P.O.Jamalpur, P.S.- Chand, District- Kaimur .... .... Petitioner/s Versus 1. Husain Ara Begam D/O Late Muzaffar Khan, W/O Masih Khan R/O Village- Biddi, P.O. And P.S.- Chainpur, District- Kaimur 2. Kaushari Begam D/O Late Muzaffar Khan, W/O Diwan Ahmad Khan R/O Village- Manpur, P.O.- Biuar, P.S.- Chainpur, District- Kaimur 3. Laila Begaum Mahal W/O Late Muzaffar Khan R/O Village- Pateri, P.O.- Jamalpur, P.S.- Chand, District- Kaimur 4. Makbul Khan S/O Late Nasuruddin Khan R/O Village- Pateri, P.O. Jamalpur, P.S. Chand, District-Kaimur 5. Nehal Khan S/O Late Ayub Khan R/O Village- Pateri, P.O.- Jamalpur, P.S.- Chand, District- Kaimur 6. Jainuddn Khan S/O Late Ayub Khan R/O Village- Pateri, P.O.- Jamalpur, P.S.- Chand, District- Kaimur 7. Mustak Khan S/O Late Sabir Khan R/O Village- Pateri, P.O.- Jamalpur, P.S.- Chand, District- Kaimur 8. Nasum Khan S/O Late Sabir Khan R/O Village- Pateri, P.O.- Jamalpur, P.S.- Chand, District- Kaimur 9. Ajay Khan S/O Late Samsuddin Khan R/O Village- Pateri, P.O.Jamalpur, P.S.- Chand, District- Kaimur 10. Vakil Khan S/O Late Samsuddin Khan R/O Village- Pateri, P.O.Jamalpur, P.S.- Chand, District- Kaimur 11. Mohammad Khan S/O Late Samsuddin Khan R/O Village- Pateri, P.O.Jamalpur, P.S.- Chand, District- Kaimur 12. Nazuruddin Khan S/O Late Samsuddin Khan R/O Village- Pateri, P.O.Jamalpur, P.S.- Chand, District- Kaimur 13. Hakimuddin Khan S/O Late Samsuddin Khan R/O Village- Pateri, P.O.Jamalpur, P.S.- Chand, District- Kaimur 14. Wahl Khan S/O Late Samsuddin Khan R/O Village- Pateri, P.O.Jamalpur, P.S.- Chand, District- Kaimur 15. Isthag Khan S/O Late Allauddin Khan R/O Village- Pateri, P.O.Jamalpur, P.S.- Chand, District- Kaimur 16. Ashad Khan S/O Late Allauddin Khan R/O Village- Pateri, P.O.Jamalpur, P.S.- Chand, District- Kaimur 17. Mehru Begum W/O Late Sammi Khan R/O Village- Pateri, P.O.Jamalpur, P.S.- Chand, District- Kaimur 18. Sahjada Khan S/O Late Abdul Ganni Khan R/O Village- Pateri, P.O.Jamalpur, P.S.- Chand, District- Kaimur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Santosh Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER
Patna High Court CWJC No.6060 of 2013 (2) dt.24-06-2013
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2 24-06-2013
Heard learned counsel for the petitioner.
Petitioner seeks quashing of the order dated 7.2.2013 passed by Sub-Judge-5, Bhabhua ( Kaimur) in Title Suit No. 19 of 2008, whereby he has rejected the petition filed under Order 26 Rule 2 of the Code of Civil Procedure for examining her on commission.
Learned counsel for the petitioner has vehemently submitted that the petitioner is
a pardanasin lady and because of her poor health, it is difficult for her to go to the Court and depose. He submits that in the interest of justice it is appropriate to set aside the impugned order and allow the lady petitioner to be examined on commission.
I have perused the impugned order. Learned Court below has considered the fact that nothing was brought on record as regards petitioner’s ailment or her old age. On the basis of the material available, learned Court below found that it was not a fit case necessitating examination of the petitioner on commission and accordingly, rejected the petition under Order 26 Rule 2 of the Code of Civil Procedure.
The Court’s jurisdiction to allow a witness to be examined on commission in exercise of power under Order 26 Rule 2 of the Code of Civil Procedure is discretionary. Such order
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can be interfered in a proceeding under Article 227 of the Constitution of India only if it is found that the order is beyond jurisdiction or irregular or discretion has not been exercised judiciously.
I find no such illegality in the impugned order dated 7.2.2013. The writ application is, accordingly, dismissed.
This will, however, not preclude the learned trial Court from considering any such application filed on behalf of the petitioner in future, seeking similar relief on the basis of material available on record.
(Chakradhari Sharan Singh, J)
Arun Kumar/-
2 issues framed by the court
Whether the High Court can interfere with the trial court's discretionary decision rejecting a petition for examining a witness on commission under Order 26 Rule 2 CPC.
Whether the order rejecting the petition for examination on commission was beyond jurisdiction, irregular, or exercised without judicious consideration.
2 provisions across 2 enactments
Jamila Bibi
Husain Ara Begam
Chakradhari Sharan Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
