IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 12.11.2008 S.B. CIVIL WRIT PETITION NO.12237/2008 HON'BLE MR. JUSTICE DALIP SINGH Shri G.K. Garg, for the petitioner. Shri D.K. Malhotra } Shri Rajesh Malhotra } Shri Joginder Gorkal } Shri Rajesh Malhotra }, for the respondents No.2 and 3. Heard learned counsel for the parties. The petitioner has challenged the order dated 7.7.2008 by which the application filed by the petitioner under order 26 for recording the statement of the witness Raj Mata Gayatri Devi on commission has been rejected. The application, as has been mentioned in the impugned order was filed on the ground that the plaintiff who is the witness is an old lady of 89 years and in the recent past has undergone surgery for hip joint replacement and knee joint replacement on account of which she suffers acute pain in the lower part of the body and as such the witness is unable to appear before the court for giving the statement. The defendant non petitioner opposed the aforesaid prayer and filed newspaper cuttings in reply to show that the witness had attended several functions in the month of January and February 2008 and therefore the grounds as mentioned in the application did not subsist. The learned trial court after hearing both the parties passed the following order : ''दोनों प¢ों को सुनने के बाद मेरा यह ः पं ट मत है Ǒक राजमाता गायऽी देवी 89 वष[ कȧ मǑहला होने के बावजूद अपने जीवन मɅ सǑबय है और ǒविभÛ न समारोहों मɅ उपǔः थत होती रहती हɇ। अत: इस तक[ मɅ कोई सार नहȣं है Ǒक वे ''Ǒहप जोइÛ ट ǐरÜ लेसमɅट'' एवं '' नी ǐरÜ लेसमɅट '' के ऑपरेशन के कारण Û यायालय मɅ उपǔः थत नहȣं हो सकती है। जहां तक राजमाता गायऽी देवी के सीǑढयों के चढने मɅ असमथ[ता का ूँ न है उनके बयान माउÖ ड फलोर पर ǔः थत Û यायालय क¢ मɅ िलये जा सकते हɇ तथा सामाÛ य िनयम दȣवानी (1986) के िनयम 85 के अनुसार उनकȧ वृƮावः था को देखते हए उनको कुसȸ पर बैठाकर उनके ु बयान लेखबƮ Ǒकये जा सकते है। अत: मेरे मत मɅ ूाथȸ राजमाता गायऽी देवी के बयान लेखबƮ करने हेतु किमँ नर िनयुǔÈ त कȧ ूाथ[ना ः वीकार योÊ य नहȣं है। उपरोÈ त ǒववेचन के पǐरणामः वǽप ूाथȸ राजमाता गायऽी देवी कȧ ओर से ूः तुत Ǒकये गये Ǒदनांक 5/1/08 के आवेदन पऽ को एतदƮारा खाǐरज Ǒकया जाता है और यह ः पं ट Ǒकया जाता है Ǒक राजमाता गायऽी देवी के बयान माउÖ ड फलोर पर ǔः थत Û यायालय मɅ अथवा अवकाशागार मɅ जैसी भी सुǒवधा हो उÛ हɅ कुसȸ पर बैठाकर िलये जावे।'' Learned counsel for the petitioner urged that the same grounds which have been mentioned in the application before the learned trial court apart from the other grounds as mentioned in paras E and F of the writ petition and has relied upon the recent medical certificates of the treating doctor which have been issued on 9.7.2008 (Annexure-4). When in the doctor has certified that “she is unable to walk for a number of medical reasons... I have recommended that she is unfit to travel for the next 2 – 3 months.” The learned counsel for the non petitioner also supported the order passed by the learned trial court and insisted that the witness had been attending the functions as would be evident from the news paper cuttings dated January 12 2008, 6.1.2008, 26.12.2007, 21.2.2008 and 22.2.2008 and therefore it was wrong to contend that the witness suffers from any infirmity so as not to be able to attend the court. He also submitted that the witness has travelled abroad several time inspite of the aforesaid infirmity. I have given my thoughtful consideration to the submissions of the learned counsel for the parties and perused the order of the learned trial court. A perusal of the impugned order itself goes to show that the learned trial court has in fact arrived at a conclusion that the witness is not in a condition to appear before the court as would be evident from the operative portion of the order reproduced above, and therefore it has directed that on the ground floor a Chamber or a courtroom would be made available for recording the statement of the witness in the court premises where she would be permitted to give her statement while sitting on a chair. From the above directions given by the learned trial court it is clear that the learned trial court itself was satisfied that the witness is incapable of appearing before the court and climbing the stairs and give her statement while standing before the court. In such a situation the application ought not to have been dismissed. The provision of order 26 which enable the court to allow the witness to be examined on commission are rules of procedure for advancing the justice hand maids for delivery of justice. Once the court found that it was not possible for witness to appear before the court the procedure for the appointment of Commissioner to record the statement of the witness which has been provided for under code could have been resorted to rather than the extraordinary course as set out in the order impugned. So far as the objection of the respondents that the witness was seen attending functions in public in December 2007, January 2008 and February 2008 are concerned the material date is not what the witness was doing in the past. There is the medical certificates of treating doctor before this court dated 9.7.2008 which shows that the doctor attending on the witness has declared that she is unable to travel and appear before the court. Learned counsel for the respondent relied upon certain judgments to show that the appointment of the Commissioner under order 26 rule 1 CPC ought not to be made. He relied upon the decision of the Calcutta High Court reported in AIR 2004 Cal.89 and in AIR 1993 Cal. 296, and the Delhi High Court in AIR 2000 Delhi 141. I have gone though the above referred judgments and there can be no quarell with the law laid down by the learned Judges of the Calcutta High Court. A perusal of the same goes to show that the court was not satisfied with the fact of the witness being unable to attend court in those cases on the facts before it. However, in the facts and circumstances of the present case by the impugned order the learned trial court has itself come to the conclusion that the witness could not appear before the court and special arrangements were required to be made for recording the evidence of the witness as would be evident from the impugned order. The judgments cited at bar by the learned counsel for the respondent are therefore not applicable to the facts of the present case. The order passed by the learned trial court is to say the least contradictory in itself and suffers from an error of jurisdiction where the learned trial court after holding that though the witness is in capable of attending the court has not permitted the examination of the witness on commission and hence calls for interference under Articles 226 and 227 of the Constitution of India. As laid down by their Lordships of the Hon'ble Supreme Court in the case of S.E.B.I. Vs. Arihant Cotsyn Ltd. & Ors. reported in 2005 (13) SCC 498 relied upon by the learned counsel for the respondent when the Hon'ble Supreme Court has held that a High Court may exercise powers when the trial court has “failed to exercise jurisdiction which it does have.” In the present case the court was satisfied that the witness was unable to appear before the court and in such circumstances to insist that the witness cannot come to the court premises and special arrangements be made rather than appointing a Commissioner for the purpose of recording the statement shows that it was a case when the learned trial court failed to exercise the jurisdiction vested in it by order 26 CPC read with Section 151 CPC. In the facts and circumstances therefore I am inclined to allow this writ petition as well as the application submitted by the petitioner for being permitted to examine the witness Raj Mata Gayatri Devi petitioner on commission for recording of her statement. Learned counsel for the parties submitted that the learned District Judge (trial court) may now be directed to appoint a retired Judicial Officer practicing as a lawyer not below the rank of Additional District Judge for the purpose of recording the statement of the witness Raj Mata Gayatri Devi. The parties are permitted to make the aforesaid request to the learned trial court and may give a panel of names before the learned trial court out of which the learned trial court may appoint any one person as a Commissioner for recording the statement after taking consent of the person concerned and setting the fees as prayed by both the learned counsel. This writ petition is allowed as above. (DALIP SINGH),J. Ramchandrkhatri,PS