w W ¥ 3mm gg WRIT PETITION(227)N0. ‘5l;/201o.‘ PETITIONERS: 1. Chandramani Patel, son of Trilochan DEFENDANTS: Patel, aged about 64 years. 2. Govindram Patel, son of Trilochan Patel, aged about 50 years. 3. Hemlal Patel, son of Gopal Singh, aged about 62 years. All resident of village Sangitarai, Post Chatamura, Raiggarh, Tahsil and District Raigarh, Chhattisgarh. VCI'S‘LIS RESPONDENTS 1. Jeevat Bandhan Dubey, son of PLAINTIFF Ramdhani Dubey, aged about 75 years, caste Bhraman, residence of Jute Mill, Coolie Line, Raigarh, Presently residing at Sangitarai, Tahsil and District Raigarh, Chhattisgarh. 2. Minor Alok Kumar Goyal son of Suresh Kumar Goyal, aged about 13 years, Through Natural Guardian Suresh Kumar Goyal, son of Banarsi Das Goyal, caste Agrawal, residence of Orissa Road, Dipapara, Raigarh, Tahsil and District Raigarh, Chhattisgarh. (DEFENDANT NO. 1) 3. State of Chhattisgarh, Through Collector, Raigarh, Chhattisgarh. (DEFENDANT N02) ft./ m ~ @ HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon’ble Shri Prashaht Kumar Mishra, J. Writ Petition (227) N0. 615 of 2010. Petitioners Chandramani Patel and others. Defendants. Versus Respondent Plaintiff Jeevat Bandhan Dubey and others. Writ petition under Article 227 of the Constitution of India Present : Shri C. Jayant K. Rao, counsel forthe petitioners. 0 R DE R (10m February, 2010) The petitioners/ defendants are aggrieved by the order passed by the trial Court on 03.1 1 .2009 (Annexure-P/Z) by which the plaintiffs' application under Order XXVI Rule 1 of Code of Civil Procedure was allowed. The petitioners are also aggrieved by the order dated 26.1 1.2009 (Annexure-P/1) whereby their application beforerthe trial Court for reviewing the earlier order dated 03.1 1 .2009 has also been dismissed. 2) i Learned counsel for the petitioners argues that even though the Witness isLaged about 82 years, While allowing the said application it was incumbent upon the trial Court to have called for the medical/certificate to ascertain her health and physical condition for the purpose of and before allowing the application. > 3) t The trial Court has passed the order exercising jurisdiction ‘/\ in“ v WWW {I //under Order XXVI Ruie 1 of Code of Civil Procedure to allow the B plaintiffs to examine one of their witnesses, who is 82 years of age on commission. if a witness is examined on commission, the petitioners can never be prejudiced, inasmuch as, during the examination of the witness, the petitioners themseives or their lawyer can remain present at the place of examination. Further, there is no legai requirement under Order XXVI Rule 1 of Code of Civil Procedure that the application should also be supported with a certificate of sickness. The explanation appended to Order XXVI Rule 1 of Code of Civil Procedure, relied upon by the petitioners, is only a provision enabling the Court to call for a certificate of registered medical practitioner, while exercising jurisdiction under Order XXVI Rule 1 of Code of Civil Procedure. The provision no where suggests that whenever application for examination of a witness on commission is moved on the ground of age or infirmity or sickness, the party concerned is bound to produce a medical certificate, failing which the application cannot be entertained. 4) ln the opinion of this Court, the learned trial Court has not committed any error of jurisdiction or manifest illegality while allowing the application under Order XXVI Rule 1 of Code of Civil Procedure. 5) ln the- result, this writ petition under Article 227 of the Constitution of lndia fails and is hereby dismissed at the admission stage. Sdl- *‘ Prashant Kumar Mishra " v. subbu Judge