R.C. Mitter, J.
1. This Rule must be made absolute. The plaintiff instituted the suit against the defendants to establish a right of way over a certain piece of land. That suit was instituted on April 21, 1933. On May 21, 1931, the suit was dismissed for default of appearance on the part of the plaintiff. Thereafter on June 2, 1931, the plaintiff put in an application for restoration of his suit under Order IX, Rule 9 of the Code of (Civil Procedure). As his case was that he could not attend the Court on May 31, 1934, on account of illness he considered it necessary to have his deposition on record so that his c se might be restored. On July 10, 1934, he made an application in the restoration case for his examination en commission. That application was supported by a medical certificate granted by a Doctor named Dhirendra Nath Ghose. In the said certificate tie Doctor said that the plaintiff was for several years past under his treatment and had been suffering from dyspepsia, palpitation of the heart and fatty degeneration. He further stated that any kind of physical strain, long walk or ascending stairs on his part might be followed by sudden, grave and fatal consequences. The Court, however, on July 16 did not issue a Commission for his examination, it being of opinion that the case was not likely to be taken up in a short time. There were two further adjournments, one on July 21, 1934, and the other on August 18, 1934, of the Miscellaneous case for restoration. On September 15, 1934, the plaintiff made an application for long adjournment of the restoration case. This time he got hold of a new Doctor named Ashutosh Chakrabarty. A medical certificate was granted to him on September 14, 1934. The Doctor does not state how long he had been treating his patient. He only stales that the man was suffering from asthma accompanied by palpitation of heart and was under his treatment. The Court did not grant the application for long adjournment but fixed September 22, 1931, for the hearing of the restoration case. Although the certificate of Doctor Ashutosh Chakravarty was given on September 14, 1934, the plaintiff was able to come to Court to give his deposition eight days later, namely, on September 22, 1934. The serious illness from which he was, it is alleged, suffering from for many years and which made it risky to his life to attend Court seems to have disappeared when the plaintiff felt that he could not have his case restored unless he came to Court and deposed. The suit was restored on the same day, namely, on September 22, 1934, and a new chapter began from that date, namely, the preparation of the ground work and chalking out of the procedure to be adopted in the suit itself which had been restored. Accordingly on November 13, the plaintiff came with an application for his examination on commission in the suit. From the plaint it appears that his evidence would be a very material piece of evidence because he has stated many facts from his personal knowledge in the plaint. This time a certificate is given by still another Doctor of the name of Joytish Chndra Biswas. The certificate which is dated November 13, 1934, mentions that this Doctor had been treating the plaintiff for a month that he had been suffering, from chronic dyspepsia with palpitation of the heart. There is not a single prescription put in corroboration of his illness. None of the Doctors have been examined. The medical certificates do not tally with each other and there is no reason suggested why the plaintiff forsook Dr. Dhirendra Nath Ghosh who according to his case had been treating him for a number of years and who was more qualified according to the University standard than the other two Doctors. Counter-affidavits were put in on behalf of the defendants in which they pointed out that the man was hale and hearty, at least was not more infirm than men of his age, that he was moving about in Calcutta, attending the Radios with his daughter and so forth.
2. The learned Munsif, however, granted the commission without recording a finding as to whether the plaintiff was really suffering from a serious illness or not. There are no words in that order from which it can be inferred that he considered the point as' to whether the plaintiff was suffering from a serious illness or not. The order is very cryptic. It runs as follows: 'Plaintiff's petition for examination put up. Read defendants' affidavit and heard Pleaders. Let the plaintiff be examined on commission'. in my judgment when an application for the examination of a material witness residing within the jurisdiction of the Court is made, the Court is under the obligation of considering whether he is suffering from any illness, or if he is suffering from any illness, whether the nature of the illness would prevent the witness from attending Court or would make it risky to his life to do so. These points have to be considered before an order for the issue of a commission is made and specially so when the application is for the issue of a commission for the examination of a plaintiff or a defendant in a suit. If the Court had come to the conclusion that the man was really ill, I would not have had power to revise that order or at least I would not have felt inclined to revise it. But when there is no finding on this point find when a finding cannot be inferred even from any of the words used in the order, it is my duty to set aside the order of the learned Munsif directing the issue of the commission.
3. In the above view of the matter, the cases of this Court do support me. Even the case cited by the opposite party before the, namely, the case of Phanindra Krishna Dutt v. Promatha Nath : AIR1928Cal421 , confirms me in the view that I take. I need not refer to the earlier cases but there is one case to which reference must be made as it sets out clearly the principles to be followed, namely, the case of Sarat Kumar Ray v. Ram Chandra 35 C.L.J. 78 : 68 Ind. Cas. 9 : A.I.R. 1922 Cal. 42.
4. As I have held that the order of the learned Munsif is to be set aside, there are two courses open to me namely, either to remand the case to the lower Court so that the said Court may come to a finding on the question of illness and make the necessary order or to consider the materials on the record in support of the application for the issue of commission and come to a finding of my own. The materials have been placed before me fully on both sides. I have already indicated in my judgment important facts urged in support of the application for issue of a commission and I hold that these materials are not reliable and are insufficient to support the case of illness. The plaintiff is, no doubt, an old man. If he comes to Court and deposes, no doubt, the Court would give him comfortable seat and see that there is not much unnecessary strain put upon him.
5. I accordingly make the Rule absolute, set aside the order issuing the commission and direct_ that if the plaintiff wants to give his evidence, lie must come and depose Unless he is able to convince the Court by proper materials that there has been an alteration in the circumstances relating to his health since the order was made by the Court below on November 24, 1934. If such an application is made, the Court would scrutinise the application and the materials in support thereof with care before passing an order for examination of the plaintiff on commission.
6. In the circumstances of the case, I do not make any order for costs.