ff : '^ ,C.,;".(.<-' ^ Si3.LC IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.^ WRIT PETITION f227^ N0.^62» OF 2010 PETITIONER Plaintiff Smt. Parvati Bai, W/o late Shri Ratanlal Sarda, aged about 82 years, now 85 years, R/o C/o Laxmi Njwas Sarda, Vardhman Nagar, Rajnangaon (C.G.) RESPONDENTS Defendants VERSUS ^ 1. ..v^ ^...^ ?%^' ^.^ ,^' ^<<-\ ^^' ^ 2. &"'IL'A^V___ Shrikant Sarda, S/o late Ratanlal Sada, aged about 54 years, Now 58 years, Sarda Traders, OId Civil Lines, Rajnandgaon (C.G.) Vishnu Das Sarda, S/o Shri Bhagirath Ji Sarda, aged about 45 yeaars, now 47 years, resident of Sarda Traders, Old Civil Lines, Rajnandgaon (C.G.) Pandit Shrikant Mahraj, aged about 50 years, S/o not known, Presently residing at Ramayan Satsang Bhawan, Parvati Sadan, Bramhanpara, Rajnandgaon (C.G.) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA 3. HjGH COURT OF CHHATTSSGARH AT BSLASPUR S5imle_8ench: Hon'ble Shri Justice Prashant Kumar Mlshra PETITIQNER RESPONDENTS Writ Petitlon (2271 N®.2868 OF 2010 Smt. Parvati Bai Versus Shrlkant Sarda and others. Shn R.N. Jha, counsel for the petltloner. Shu Parag Kotecha, respondents No.1 to 3. PETmON UNDER ARTSCLE 227 OF THE CONSTSTUTION OF SNDIA ORALORDER (15.08.2010) The trial Court has rejected plaintlff's appltoatton under Order 26 Rule 1 of C.P.C. for Issuance of commission to examine the ptaintiff, who is oid Sady of 85 years of age. (2) The petltioner^plaintlff has preferred the suit for cieclaration of titie, possession and damages. (3) An gpplication under Order 26 Rule 1 of C.P.C. was ewtler filed, whsch was rejected by the trial Court on 28-08-^08. The present application was fited on 23-01-2010 for issuance of commteslon. The ground mentloned in the application is that the ptalntlff is old and infirm lady of 85 years of age and Is suffering from dtabetes and severat orthopedtc complications-. tt hss been stated in the applicatlon that she suffers from severe jojnt paln and Is under treatment from Dr. Buxy. She has been advteed by the phystelan. <t has been exptained in para 3 of the appiteation that eariier applteatlon was rejected because It was not supported wlth medteal certificate and that the plaintiff had appeared at the time of fillng of the suit. It has ateo been stated in the ^pplteation that slnce thereafter the ptaintlff is continuousiy ilt and the -^- jolnt pain has increased and that in another suit her pra^r for jssuance of commlssion has been allowed. She further stated In para 5 of the appjjcatlon that of joint paln It has become dlfficutt for her even to walk properly.. (4) The defendants contested the appllcatlon by submittlng that in vlew of rejection of her earller appltoation for issuance of commtsslon the subsequent appitoatlon ts not maintainable. (5) in the oplnjon of thjs Court rejectlon of the earlier prayer In August, 2008 is not an impediment for movlng another appticatlon under Order 26 R.ule 1 of C.P.C. in the changed drcumstances when specific averments have been made that the iltness has increased anct she has been advised rest and ts not ab'e to walk properly. At the a^e of 85 a person may suffer any kind of {(Iness and therefore, if the subsequent appSication te moved on the change ctrcumstetnces the same is maintasnabte. (6) Leamed coynsel for the respondent has argued that in view of the provteion contalned in Section 11 of G.P.C. the application would be barred by principte of res judfcata. In the qstnion of this Court the prlnclple of res judicata appties where an Issue has been decidecl. Whjte deciding under Order 26 Rute 1 of C.P.C. the Court has not declded any tssue or any substantlal right of the party to the suit. Order 26 Rule 1 of C.P.C. is a procedure enabiing the party to move an applicatton for examlnatton of wltness on Gommisslon. The grounds on whteh such an application can be moved has been mentioned in the provision itseif. !f such ground exists an apptlcation can be entertained after being sattefied about the existence of the ground for exerclse of jurlsdjctlon and discretlon. ,^iS£^^^ .>"^f^ :IN. ;,-» ,,^;^;.^-i^,. .'.^ :'.^%iit, ^ -z> (7) In the opinion of this Court, the triaS Court has committed an error of law and has the order wlth material irregularity in exerdse of jurisdjctton by refusjng the petitloner's appilcation for examtnation of wltness on commission. (8) The Impugned order is thus set-aslde. The applicatlon for examinatton of the plaintiff Smt. Parvatl Bal on commission te allowed. The trial Court shall now proceed to issue the writ of commisston. (9) The wrft petitlon is altowed. (10) Partles to bear their own cost. — Sd/- Prashant Kumar Mishra Judge ^