Revision petitioner challenged order dismissing application for examination of a party on commission. High Court held application was misconceived for lack of evidence of infirmity and inability to compel the witness to appear during their turn to examine.
Revision petition is devoid of any merit and is accordingly dismissed in limine.
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C. R. No. 4869 of 2010
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 4869 of 2010
Date of Decision : August 04, 2010
Kartar Singh and others
.... Petitioners
Vs.
Amarjit Singh and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
Present : Mr. Satbir Gill, Advocate for the petitioners.
L. N. MITTAL, J. (Oral) :
Plaintiffs have filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 08.04.2010 (Annexure P-3) passed by learned Civil Judge (Junior Division), Sirsa, thereby dismissing plaintiffs' application for examination of defendantrespondent no.4 as witness on commission.
Plaintiff no.1 and defendant no.3 are sons of defendant no.4 Mangal Singh. Plaintiffs no.2 to 4 are legal heirs of pre-deceased son of defendant no.4, whereas defendants no.1 and 2 are sons of defendant no.3. Plaintiffs have filed suit assailing consent judgments and decrees allegedly
C. R. No. 4869 of 2010
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suffered by defendant no.4 in favour of defendants no.1 to 3 and seeking declaration that plaintiff no.1 is owner in possession of the suit land. Plaintiffs moved application Annexure P-1 for examination of defendant no.4 on commission alleging that defendant no.4 is aged more than 100 years and he is residing with defendant no.3 and by misusing the mental state of defendant no.4, decree has been obtained by sons of defendant no.3.
The application was opposed by defendants by filing reply Annexure P-2 alleging that the plaintiffs cannot seek examination of the opposite party as witness without consent of the opposite party. It was also denied that defendant no.4 is aged 100 years.
Learned trial court, vide impugned order Annexure P-3, dismissed the plaintiffs' application. Feeling aggrieved, the plaintiffs have filed the instant revision petition.
I have heard learned counsel for the petitioners and perused the
case file.
There is no material on record to depict that defendant no.4 is aged 100 years or that he is unable to attend the Court himself. The application Annexure P-1 moved by the plaintiffs is neither supported by any affidavit nor by any medical evidence or other material on record to substantiate the plea that defendant no.4 is physically or mentally infirm to attend the Court himself. Consequently, the very basis for moving the application Annexure P-1 is non-existent.
C. R. No. 4869 of 2010
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In addition to the aforesaid, the application itself is misconceived because plaintiffs cannot force defendant no.4 to appear in the witness-box. It is the sweet will of the defendants as to who is to appear in the witness-box on their behalf. It is different matter if any material witness does not appear as witness, adverse inference may be drawn against him, as may be permissible under the law. However, the plaintiffs cannot force defendant no.4 to enter the witness-box, if he does not want to appear in the witness-box. It may be added that the case is still at the stage of plaintiffs' evidence and it is still to be decided by defendants whether defendant no.4 wants to appear as witness or not when the case is fixed for their evidence.
Learned counsel for the petitioners referred to Order 26 Rule 4-A of the Code of Civil Procedure to contend that any person can be examined on commission. However, this provision does not entitle the plaintiffs to force defendant no.4 to appear as witness.
For the reasons aforesaid, I find no illegality in the impugned order of the trial court. Application Annexure P-1 moved by the plaintiffspetitioners, which has been dismissed by the trial court by impugned order, is completely misconceived and untenable. The revision petition is devoid of any merit and is accordingly dismissed in limine.
( L. N. MITTAL ) JUDGE
August 04, 2010
monika
3 issues framed by the court
Whether an application to examine a consenting party on commission was maintainable despite lack of medical evidence proving incapacity.
Whether plaintiffs could force defendant no.4 to appear in the witness-box to give his evidence as the case had not yet reached defendants''. Stage.
Whether the exclusion of a party from the witness box without cogent material of physical or mental infirmity is illegal or misconceived.
3 provisions across 2 enactments
Kartar Singh and others
Amarjit Singh and others
L. N. MITTAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
