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Judgment
Veena Birbal, J.—By way of present petition petitioner has challenged impugned order dated 10th April, 2008 passed by learned ADJ in LAC No 48/2006, 49/2006 and 95/2006.
Briefly the facts of the case are as under:
Petitioners are daughters of deceased Pyare Lal Sharma. Respondents are their cousins. As per respondents father of petitioners executed alleged Will dated 24.12.1975 wherein properties situated at Bhartal and Dhoolsiras, Delhi had been given by him to Sh. Prabhu Dayal Sharma i.e. father of respondents. Later on the said property was acquired Govt of India and compensation has been claimed by the legal heirs of alleged beneficiary of late Prabhu Dayal Sharma i.e. respondent Nos. 2 to 5. Three references u/s 30-31 of Land acquisition Act, 1894 are pending before learned ADJ. Petitioners have denied their father executed alleged Will. They are claiming the compensation in respect of land of their father whereas respondents are relying on the alleged Will dated 24.12.1975. According to petitioners alleged Will dated 24.12.1975 is a false and fabricated document. Respondents have led secondary evidence to prove the alleged Will. During the pendency of reference, the petitioners made enquiry and had come to know that attesting witness to the alleged ''Will'' dated 24.12.1975, namely, ''Sh.Zahoor Ahmed'' aged about 85 years is alive. They moved an application under Order 26 Rule 4 read with Section 151 CPC before the trial court for recording the evidence of the aforesaid witness through commission at Jabalpur or through video conferencing on the ground that witness is an old man and medically unfit to travel. The said application was dismissed by the learned ADJ vide order dated 8.1.2008. Petitioner challenged the same by way of filing CM(M) being No. 151/2008, 152/2008 & 153/2008 before this Court wherein order dated 6.2.2008 was passed with the consent of parties. Pursuant to that directions were issued to the Chief Medical Officer, Govt. Hospital, Jabalpur by this Court for medical examination of the aforesaid witness and to certify his state of health.
On 13.2.2008 witness Zahoor Ahmed was examined by Board of Doctors of Govt. Hospital, Jabalpur and a medical certificate of same date was placed on record before the learned reference court by petitioners. There was some controversy between the parties about genuineness of said medical certificate as such same was rejected and petitioners were directed to furnish fresh medical certificate. Thereupon, witness Zahoor Ahmed tried to get himself again examined from the aforesaid hospital. But his request was declined. It is alleged that petitioners on their visits to hospital had realized that the concerned doctors had either been threatened or had been under the undue influence of respondents. Ultimately, petitioners got the witness Zahur Ahmed examined from other doctors at Jabalpur and also placed on record photographs/ video film of the witness and also produced medical certificate dated 8.4.2008 and requested reference court to record the evidence of witness by issuing commission at Jabalpur. Learned trial court vide impugned order 10.4.2008 has rejected the request of petitioners and last opportunity is granted to them to produce witness Zahur Ahmed in court. Aggrieved with the said order present petition is filed.
Respondents in reply have stated that petitioners are trying to over-reach the order of this Court dated 6.2.2008 passed in CM(M) No. 151/2008, 152/2008 & 153/2008 wherein controversy as to whether witness Zahur Ahmed has to be examined by appearing in court or by way of commission has been resolved with the consent of parties. In pursuance to the same the court issued directions to the CMO of Govt. Hospital at Jabalpur for medical examination of the said witness to certify whether he is or is not fit to travel to Delhi by road, rail or air. It is stated that pursuant to the same the witness was examined by the Medical Board of Victoria Hospital, Jabalpur on 13.2.2008 and a medical certificate was issued certifying that he may not be able to travel. It is alleged that petitioners did tampering in the said certificate and the word "may" was scored out and in its place word "is" is inserted so that certificate dated 13.2.2008 be read as "he is not able to travel". It is alleged that respondents got issued fresh copy of medical certificate dated 13.2.2008 as per the record of hospital. The same was produced before the trial court which did not tally with the earlier certificate dated 13.2.2008 placed on record by petitioners. Thereafter, learned AD J issued orders to the Medical Board for issuance of directions to Civil Surgeon, Victoria Hospital, Jabalpur to file fresh certificate. Accordingly, fresh medical certificate dated 1.4.2008 was issued by the aforesaid Medical Board wherein it is certified that witness can travel by train, Air or Rail with an escort or a helper. It is alleged that witness is fit to travel.
Learned Counsel for petitioners has contended that as per certificate dated 13.2.2008 issued by the Medical Board of Victoria Hospital at Jablapur doctors are not sure as to whether the witness can travel or not and as such witness be examined by sending Commission at Jabalpur. It is contended that subsequent medical certificate given by Medical Board dated 1.4.2008 also shows the same thing. It is contended that clarification has been subsequently added there due to alleged threats/undue influence on concerned doctors by respondents, as such same be not believed. It is further contended that in any event fresh medical certificate dated 8.4.2008 produced by petitioners along with photographs and video cassettes of witness on record nullifies the earlier medical certificates issued by Medical Board of Victoria Hospital at Jabalpur.
On the other hand, learned Counsel for respondent has contended that the controversy between the parties whether the witness has to appear in person or has to be examined through Commission has been resolved by the order of this Court dated 6.2.2008 passed in CM(M) No. 151/2008 & 152/2008 & 153/2008. Medical Board of Victoria Hospital at Jablapur, M.P. vide certificate dated 1.4.2008 has certified that witness can travel by Air/train with an escort/helper. It is further contended that petitioners have deliberately concealed the medical certificate dated 1.4.2008 from the court as such they are not entitled to any relief. It is contended that subsequent medical certificate produced by petitioners are of private doctors and cannot be relied upon. It is further contended that Zahoor Ahmed is an important witness and his evidence is a material piece of evidence. His evidence may be recorded in court so that the demeanour of the witness can be noted by the Court.
I have considered the submissions made and perused the record.
The issue regarding examination of witness on Commission has already been dealt by this Court in CM(M) No. 151/2008, 152/2008 & 153/2008 wherein order dated 6.2.2008 is passed which is as under:
Instant petitions relate to 3 references before the learned Additional District Judge u/s 30-31 of the Land Acquisition Act, 1894. A problem has arisen. Petitioners want to examine one Zahur Ahmed as their witness. He is a resident of Jabalpur. It is not in dispute that Zahur Ahmed is'' aged 85 years. Petitioners'' desires that he be examined on a commission. They state that due to his age he is unfit to travel to Delhi. Respondent denies the same. Learned Reference Court has notified 1st March 2008 for examination of Zahur Ahmed. The examination is to be required in Court.
It is agreed between learned Counsel for the parties that if petitioners obtain a certification from the Chief Medical Officer of a government hospital at Jabalpur certifying that due to his advancing age or deteriorating medical condition, Zahur Ahmed is not physically fit to undertake a journey to Delhi, parties would by consent request the Court that Zahur Ahmed be examined on commission at the expense of the petitioners. Meaning thereby the fee of the local commissioner and the court staff who would take the Court record to Jabalpur where Zahur Ahmed would be examined would be borne in its entirety by the petitioners. It is further agreed that in case petitioners do not obtain any such certification Zahur Ahmed would appear as witness of the petitioners before the Reference Court on 1.3.2008. It is further agreed that the certificate in question if obtained by the petitioners would be placed on the judicial file of the Reference Court along with an application with advance copy being served to the respondent on or before 22.2.2008 so that Court gets adequate time to pass appropriate orders appointing a Local Commissioner.
Lest there by an problem faced by Zahur Ahmed in being medically examined directions are issued to the Chief Medical Officer of the Government hospital where Zahur Ahmed would present himself for being medically examined to examine Zahur Ahmed and certify whether he is or is not fit to travel to Delhi by road, rail or air.
Petitions stand disposed of with afore-recorded consent directions.
Copy of this order being supplied dasti by Registry to learned Counsel for the parties within 3 days from today.
In pursuance to aforesaid order medical examination of witness Zahur Ahmed was carried out by Medical Board of Victoria Hospital, Jabalpur, on 13.2.2008, petitioners had placed on record of learned reference court medical certificate issued by the Board dated 13.2.2008. There was some controversy about the genuineness of aforesaid certificate. Learned ADJ vide order dated 17.3.2008 issued directions to Victoria Hospital Jabalpur M.D. to issue fresh medical certificate thereupon the certificate dated 1.4.2008 was sent by hospital authorities which was placed on record before learned trial court. The same reads as under:
Shri Zahoor Ahmed S/o Huzoor Ahmed Age 85 years is examined by Dr. G P Choubey Specilist on 13.2.2008
He is having Stricture Urethra with Incisional Hernia.
A Medical Certificate dated 13.2.2008 was issued to him by District Medical Board Jabalpur that He may not be able to travel.
It is further clarified that he can travel by train/Air with an escort or a helper.
The contention of the petitioner is that the aforesaid certificate has been obtained by the respondents by threatening the concerned doctors or that they had been under the influence of the respondents. The respondents have denied the same. There is nothing on record to substantiate the said contention. Further the aforesaid certificate was sent to court by the hospital authorities. Under the circumstances, the contention raised has no force.
The aforesaid medical certificate clearly shows that witness can travel by train/Air with an escort or helper. This also mentions that earlier certificate dated 13.02.2008 issued by the Medical Board had certified that He may not be able to travel whereas certificate filed by petitioner shows "he is not able to travel". There are allegations of tampering of the medical certificate dated 13.02.2008 by petitioners. An application u/s 340 Cr. PC is also pending before the learned Reference Court. Further, petitioners have also not placed on record aforesaid medical certificate wherein clarification is given. The other medical certificates placed on record i.e. two dated 3.4.2008 and third dated 8.4.2008, by the petitioners are of private doctors. In these certificates rest for a particular period is advised to witness Zahoor Ahmed. As per certificates dated 8.4.2008 that period is over, whereas as per the two other certificates that period is likely to be over very soon. I have also seen the photograph of Zahur Ahmed on record. Witness Zahoor Ahmed is an attesting witness to the alleged Will dated 24.12.1974. He is a material witness to the case. The parties themselves by consent have agreed in earlier petitions i.e. CM(M) No. 151/2008, 152/2008 &153/2008 for production of said witness in court in case he is declared fit by the Medical Board of aforesaid hospital. Further Jabalpur is connected to Delhi by Air. Learned Counsel for respondents has submitted that it is a matter of one day only and they will not seek any adjournment for cross-examination of the said witness.
Considering the totality of facts and circumstances, it will be appropriate if evidence of witness Zahoor Ahmed is recorded before the learned reference court. Let aforesaid witness accompanied by escort/helper is produced by the petitioners before learned reference court. Petitioners have already agreed to bear their expenses in this regard which is recorded in order dated 6.2.2008 of this Court. Learned reference court to ensure that witness is cross examined on the day he is produced and has not to wait unnecessarily.
In view of above discussion, I find no illegality or error of jurisdiction in the impugned order which calls for interference of this Court under Article 227 of the Constitution. Accordingly, petition stands dismissed. No order as to costs.