IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2133 of 2008 SMT. SAYEEDA KHATOON & ANR Versus SUMITRA SINGH ----------- 2 19.12.2008 Heard Mr. Devendra Kumar Sinha, learned counsel appearing on behalf of the petitioners. It is rather strange that the court below has passed the impugned order in a mechanical manner. True it is that an order for appointment of Commissioner for examination of a party to the suit or a witness can be always allowed in the facts and circumstances of a case but then there must be a good reason for it. Normally, a party or a witness is supposed to appear before the court for recording his or her deposition so that the demeanor of the witnesses can be also watched by the court. In the present case, the question was with regard to the examination of the plaintiff herself. The plaintiff had definitely appeared in the court at the time of filing the suit and at the time of presentation of the plaint and as such she is not a Pardanashin lady. Thus that could not have been the ground for her being examined on commission. The prayer for her examination on commission was also not based on that ground rather she is said to be recovering from illness at Delhi even 2 when her address shown in the plaint is of Calcutta. Thus when in the petition seeking appointment of commission for her examination she is said to be stationed at Delhi in course of her treatment, such ground of illness had to be supported by evidence. No paper relating to her treatment was however produced before the court and a mere oral statement weighed upon the court in allowing such prayer. The presiding officer was on leave on that day and it is the in-charge, court which has passed such an order and that too without taking the relevant circumstances into consideration. That being so, the order dated 27.11.2008 would definitely amount to a clear jurisdictional error and therefore, this Court would set aside the impugned order with a direction to the concerned court to now once again re-consider the prayer of the plaintiff-opposite party for her being examined on commission strictly in accordance with law and after affording opportunity of hearing to the petitioner. With the aforementioned observations and direction, this application is allowed. Rsh (Mihir Kumar Jha, J.)