A.P.S. Muhammad Ibrahim vs Allapichai Rowther

Horwill, J.—An ex parte decree was passed against the defendant in Penang and the decree was transferred to the present plaintiff, a

resident of British India. The transferee decree-holder brought a suit to enforce that decree and that suit was decreed ex parte. The defendant who

was in India to celebrate his daughter''s marriage, discovered that an ex parte decree had been passed; and he applied to the Court to set it aside.

This the Court did. The defendant thereupon left the jurisdiction of the Court almost immediately, presumably for Penang. A written statement was

filed by his power-of-attorney agent and an application made by him to examine the defendant and two witnesses on commission. The learned

District Munsif permitted the examination of the witnesses on commission but not the defendant, the reason given being that the defendant was

present at the time of the hearing of the petition to set aside the ex parte decree and he could easily have approached the Court and got it to record

his evidence before he left for Penang. Against that order refusing to issue a commission to examine the defendant this Revision Petition has been

filed.

It is argued (1) that the defendant is a permanent resident of Penang and (2) that the reason given by the District Munsif was in any case

insufficient. With regard to the first point it is clear that the learned District Munsif himself did not have any doubt about the residence of the

defendant in Penang and most of the documents that I have seen here refer to his residence at Penang. A number of cases have been cited, for

example, A.R.P.R. Viswanathan Chety Vs. M.N.M. Somasundaram Chetty, , Rajagopalu Pillai Vs. Kasiviswanathan Chettiar, and a number of

English cases, in which it has been held that a defendant should ordinarily be examined on commission and that it is important that a distinction

should be made between the position of a plaintiff who chooses his forum, and the defendant who does not. The only ground on which the present

case can be distinguished is that the defendant was within the jurisdiction of the Court rather more than a month before the presentation of the

application to examine on commission. He could no doubt have approached the Court and asked it to record his evidence before he left; but I do

not think that one would ordinarily expect a defendant to think of doing so. Whether there was any special urgency or not for his return it may be

difficult to say; but there is no reason to doubt that he lived in Penang and there is therefore no reason why he should be compelled to remain in

India until such time as the suit comes up for hearing. He had left even before the written statement was filed and he could hardly have been

examined within two or three months of his having given evidence in the interlocutory proceeding. That is a long time for a business man to remain

away from his home. In a Bombay case relied on by respondent, Mowji v. Nemchand (1899) 23 Bom 626, in which an application for a

examination on commission had been rejected, the defendant was within the jurisdiction of the Court on the previous Sunday night and his

witnesses admittedly returned frequently in the course of their business. The defendant cannot be punished for leaving the jurisdiction of the Court

without the Court''s permission by compelling him to come back for examination.

There is no sufficient reason to believe, and it does not appear that the learned District Munsif believed, that the defendant was attempting to

escape cross-examination by going back to Penang. All the earlier proceedings were in Penang and the present suit could not have been, filed in

India had not the decree-holder transferred the decree to a resident of British India. Under these circumstances, I do not consider that there is

sufficient reason for a departure from the ordinary rule that a defendant residing abroad should be permitted to be examined on commission; and

the learned Munsif''s refusal to do so calls for interference from this Court. The petition is therefore allowed and the District Munsif ordered to

issue a commission for the examination of the defendant. Costs to be costs in the cause.