^}^ HIGHCQURTOFCHHATTISGARHATBILASPUR S.B.: HON'BLE SHRj JUSTICE SUNIL KUMAR SINHA WRIT PETiTION (227) No. 5472/2009 Shrikant Sarda Vs. Laxmi Niwas Sarda ORDER Postfor0rder:^/10/2009 Sd/- SunU Kumar Sinha Judge ^y;,^ HIGH COURT QF CHHATTISGARH AT BILASPUR Writ Petition (227) No.5472/2009 i Shrikant Sarda, aged about 54 years, S/o Late Shri Ratanlalji Sarda, R/o Sarda Traders, Old Clvil Lines, Rajnandgaon RESPONDENT Versus Laxmi Niwas Sarda, aged about 63 years, S/o Late Ratanial Sarda, R/o Vardhman Nagar, Rajnandgaon PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA Appearance: Shri Parag Kotecha, Counsel for the petitioner. Shri Anup Majumdar, Counsel for the respondent on Caveat Petition No.433/2009. ORDER (6.10.2009) SUNIL KUMAR SINHA. J. (1) The petitioner/defendant has filed this petition against the order dated 23.7.2009 passed by the Additional District Judge (FTC), Rajnandgaon, in Civil Suit No.1-8/2009, whereby, an application fiied under Order XXVI Rule 1 of the Code of Civil Procedure has been allowed by the said Court. It appears that an application (I.A. No.05) was filed by the plaintiff under Order XXVI Rute 1 C.P.C. with a prayer to permit the examination of his mother Smt. Parwati Sarda on commission on the ground that she was aged about 84 years and she was unable to come to the Court for giving her evidence. This application was opposed by the petitioner on the ground that almost similar application, which was filed in another Civil Suit i.e. 16-A/2007 was K^^'s^-. ,e.—a-°Sfc. ?/•" -•»• <<s rf l-L .„. ». "-.. ".^/ ••-..,^-^":'' ?t/i Writ Petition (227) No.5472/2009 dismissed, therefore, now this Court cannot allow the said application. The learned trial Judge observed that the earlier application, which was filed in Civii Suit No.16-A/2007, was filed on 28.08.2008 and the present application was fi!ed on 09.04.2009 and the physical condition in the old age varies from time to time, therefore, rejection of the earlier applteation would not come in the way. Observing a!l this, the tria! Court looking to the age of the witness and also looking to the documents relating to the present element of the witness, passed the order for issuance of commisslon. Learned counse! for the petitioner argued that the trial Court erred in law in passing such an order for issuance of commission, when a similar prayer has already been dismissed in another suit. Order XXVI Rule 1 provides that any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unabie to attend it. Proviso to sub-section (1) shows that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do. Explanation to the proviso would show that the Court may for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medica! practitioner as a witness. Para 2 at page 3 of the impugned order would show that the plairiliff had stated in his application that his mother was aged about 84 years. She was suffering from osteoporosis, for which, a certificate was aiso filed. Writ Petition (227) No.5472/2009 (^ In view of the above, 1 do not find any infirmity or iliegality in the order passed by the trial Court. sfiyna (7) The petition has no merit. The same is liable to be dismissed and is hereby dismissed at the motion stage itself. Sd/- suna^Inarsinta