Exide India Limited vs Urmila Pasari & Ors
2021 Latest Caselaw 5848 Cal

Form No. J (1)

                 IN THE HIGH COURT AT CALCUTTA

                 CIVIL REVISIONAL JURISDICTION


Present:

The Hon'ble Justice Biswajit Basu.


                            C.O. 1921 OF 2021

                          EXIDE INDIA LIMITED
                                 versus
                         URMILA PASARI & ORS.


For the petitioner:                 Mr. Shakti Nath Mukherjee, Sr. Adv.,
                                    Mr. Ayan Banerjee,
                                    Mr. Amit Kumar Nag,
                                    Mr. Pijush Agarwal,
                                    Mr. Maharnab Roy,
                                    Ms. Utsha Dasgupta,
                                    Mr. Raunak Bose.

For the opposite party nos. 1, 2 &3: Mr. Jayanta Kumar Mitra,
                                     Mr. Suddhasatva Banerjee,
                                     Ms. Radhika Singh.


Heard on:                           25.11.2021



Judgment on:                        26.11.2021



Biswajit Basu, J.

1. The revisional application under Article 227 of the Constitution of

India is at the instance of the defendant no. 1 in a suit for eviction and is

directed against the order dated October 05, 2021 passed by the 4th Court of

learned Civil Judge (Senior Division) at Alipore, District-24 Parganas (South)

in the said suit being Title Suit No. 17170 of 2014.

2. The learned Trial Judge by the order impugned has allowed an

application filed by the plaintiffs/opposite parties for recording the evidence

of the first witness of the plaintiffs on commission. The plaintiffs in the said

application stated, inter alia, that the plaintiff no. 1 is a senior citizen and is

suffering from various kinds of co-morbidities, as such, during this period of

ongoing Covid-19 pandemic it would not be safe for her to come to the Trial

Court for adducing evidence.

3. The petitioner objected to the said prayer of the plaintiffs on the

ground that despite having such alleged co-morbidities, the plaintiff no. 1

came to the Court premises before the Notary Public to swear affidavit on

number of occasions. The learned Trial Judge, considering the age and to

minimise the exposure of the said witness in the public place allowed the

said prayer of the plaintiffs.

4. Mr. Shakti Nath Mukherjee, learned senior counsel appearing on

behalf of the petitioner strenuously argues that illness and infirmity is the

sine qua non to allow recording of evidence of a witness on commission

under Order XXVI Rule 1 of the Code of Civil Procedure but recording of the

evidence of the said witness on commission has not been prayed for on the

said ground as has been recorded in the order impugned. He further

submits that no doubt Order XXVI Rule 4A of the Code has been introduced

in the Code by the Amendment Act of 1999 to vest wide discretion upon the

Court to allow recording of evidence on commission in appropriate cases but

the present case is not one of such nature where the discretion so vested

can be exercised. His another ground of challenge to the order impugned is

that the medical certificate produced by the plaintiffs to substantiate their

claim that the plaintiff no. 1 is suffering from different co-morbidities was

relied on by the learned Trial Judge without affording opportunities to the

petitioner to verify the said certificate.

5. Mr. Jayanta Kumar Mitra, learned senior counsel appearing on behalf

of the plaintiffs/opposite parties on the other hand submits that Order XXVI

Rule 4A has been incorporated in the Code to vest wide power upon the

Court to issue commission for recording evidence of a witness in a

demanding situation. Prevailing Covid-19 pandemic is one of such

situations where the Court is obliged to exercise the power so vested in it.

He further submits that proof of co-morbidities of the said witness is not of

much importance as the said witness is susceptible to infection due to her

age, which alone satisfies the requirement for exercise of power under Order

XXVI Rule 4A of the Code. Mr. Mitra, to buttress his aforesaid submission

relies on the following decisions of this Court in the case of GOUTAM

KUMAR AGRAHARI vs. STOCK HOLDING CORPORATION OF INDIA

LIMIATED AND ORS. reported in 2016(5) CHN (CAL) 403 and in the case of

GOVERNMENT OF WEST BENGAL vs. ARIJEET DOSS MULLICK AND

ORS. reported in MANU/WB/0026/2021.

6. Having heard the learned counsel for the parties and on going through

the materials-on-record, it appears that it is an admitted position that the

plaintiff no. 1 is aged about 70 years. No doubt that normal situation is

resuming slowly but the threat of Covid-19 pandemic has not gone away

totally. I am not at all impressed by the submission of Mr. Mukherjee that

infirmity or sickness of the said witness since has not been pleaded and/or

proved, the commission cannot be issued to record the evidence of the said

witness. The newly inserted Rule 4A of Order XXVI of the Code does away

with the limitation imposed upon the Court for exercise of their power under

Rules 1 and 4 thereof. The powers given under Rule 4A can be exercised

notwithstanding anything contained in said Rule 1 or Rule 4. The new rule

allows greater discretion upon the Court for issuance of commission for the

examination, interrogatories or otherwise, the Court under said Rule 4A can

issue the commission if the same would serve the interests of justice and

may allow an expeditious disposal of the case. The aforesaid decisions cited

by Mr. Mitra are apposite in the present context.

7. The verification of the prescription of the doctor produced by the

plaintiffs in support of their prayer for examination on commission under

the facts and circumstances of the present case is of no relevance. The

learned Trial Judge, to avoid exposure of the said witness to the general

public, has allowed recording of the evidence of the said witness on

commission in exercise of his discretion, this Court does not find any reason

to interfere with it.

8. The present suit is pending since 1982, the Hon'ble Supreme Court in

Civil Appeal No. 1005 of 2020 arising out of the said suit by an order dated

February 04, 2020 directed that the eviction suit shall be decided

expeditiously, preferably within a maximum period of six months from the

date of receipt and/or production of the said order before the Court below.

Despite such direction the suit is still pending.

9. In view of the aforesaid direction of the Hon'ble Supreme Court, all

endeavour should be made for disposal of the said suit without any further

delay. The Commissioner is directed to complete recording of the evidence of

the said witness in one sitting; however, in the event for any unavoidable

reason, if the same cannot be recorded in one sitting, it must be concluded

on the immediate next sitting and in doing so, the Commissioner shall not

allow the prayer of the parties for any unnecessary adjournment.

The learned Trial Judge is requested to expedite the disposal of the suit in

accordance with law.

The revisional application has no merit. C.O. 1921 of 2021 is dismissed

without any order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(BISWAJIT BASU, J.)