Arvind Kumar Mahaveer vs Arvind Exports (P) Ltd., Bombay

Jeevan Reddy, J.—This Civil Revision Petition was referred to a Bench by one of us (Jeevan Reddy, J.) to decide the question whether the civil Court has the power to direct the party applying for appointment of a Commissioner to examine his witness residing at a distant place, to pay the expenses of the other side in cases where the other side is not in a position to bear those expenses himself. It is held by a learned single Judge of this Court in Maremanda Seshamma Vs. Jooluri Narasimha Rao and Others, , following the Bench decision of the Madras High Court in The Tata Iron and Steel Co. Ltd., with its office at Jamshedpur, Calcutta Vs. S. Kader Ibrahim Rowther, that the Court has no such power under Or. XXVI, R; 15, C.P.C. The Bench decision of the Madras High Court, referred to above, goes further and holds that the Court cannot make such a direction even under its inherent powers recognized in Section 151 of the Code of Civil Procedure. It is this holding which has occasioned the reference to this Bench. No doubt the decision of the Madras High Court is not binding upon this Court, having been rendered subsequent to formation of the Andhra High Court; but yet, it carries great weight. The Bench comprised Rajamannar, C.J. and Rajagopala Ayyangar, J. As a matter of fact, it overruled certain earlier decisions to the contrary.

Rules 1 to 4 of Or. XXVI empower the Court to appoint a Commission to examine a wilness, whether the witness is residing within its jurisdiction, or outside. Rule 15 empowers the Court to order such sum (if any) as it thinks reasonable for the expenses of the Commission, to be paid into Court within a time to be prescribed by it, by the party at whose instance, or for whose benefit the Commission is issued. Rule 15 reads as follows:--

"15. Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued".

The first question is whether the expression "expenses of the Commission" occurring in the said Rule, takes in. the expenses of the other side? We agree with the Division Bench of the Madras High Court that it does not. ''Expenses of the commission'' cannot reasonably be extended to mean and include the expenses of the other side; it means the expenses of the commission only. But, the more important question is, whether the Court is powerless to make such a direction even under its inherent powers? Section 151 expressely declares; "nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of the justice or to prevent abuse of the process of the Court." Until the decision of the Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, , the consistent view taken by Madras High Court was that, where there is an express provision in the Code setting out the conditions that might be imposed, it would not be open to any court to resort to its inherent powers in order to enlarge its power, or to get over the statutory limitations. This was the view consistently taken in a series of decisions, and also constitutes the basis of the Bench decision in The Tata Iron and Steel Co. Ltd., with its office at Jamshedpur, Calcutta Vs. S. Kader Ibrahim Rowther, . But this view of the Madras High Court was expressly overruled by the Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, . In paragraph 18, the Supreme Court referred to the controversy and its decision in the following words:--

"There is difference of opinion between the High Courts on this point. One view is that a Court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order XXXIX of the Code. Vadapalli Varadacharlu Vs. Khandavilli Narasimha Charlu, ; N. Govindarajulu Nayudu Vs. Imperial Bank of India, ; Karuppayya Nadar through his authorised agent Ratnasami Nadar Vs. Ponnuswami Nadar and Another, ; Murugesa Mudali Vs. Angamuthu Mudali, , and Subra-manian v. Seetarama,AIR 1949 Mad 104. The other view is that a Court can issue an interim injunction under circumstances which are not covered by Or. XXXIX of the Code, if the Court is of opinion that the interests of justice require the issue of such interim injunction : Dhaneshwar Nath Tewari Vs. Ghanshyam Dhar Misra, , Firm Bichchha Ram Babu Ram Vs. Firm Baldeo Sahai Suraj Mal, ; Bhagat Singh Bugga Vs. Dewan Jagbir Sawhney, and Chinese Tannery Owners'' Association and Others Vs. Makhan Lal and Others, . We are of opinion that the latter view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Or. XXXIX, C.P.C. There is no such expression in Sec. 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order XXXIX or by any rules made under the Code. It is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression ''if it is so ''prescribed'' is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court''s exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of S. 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power....".

The question is whether, in view of the said decision of the Supreme Court, it must now be held that the Court does have the power, in appropriate cases, to direct the party applying for Commission, to pay the expenses of the opposite side as a condition for appointing the Commission? We are of the opinion that we should recognize, and affirm, such a power. Take the facts of this very case. The plaintiff has instituted the suit in forma pauperis. The defendant applied for appointment of a Commission to examine his witness at Bombay. (The suit is instituted in the Court of Add). Subordinate Judge at Guntur). The plaintiff says that he has no means to go to Bombay along with his advocate, or to bear the expenses for his, and his advocate''s stay at Bombay, and that unless the defendant is asked to pay his expenses therefor, he would not be in a positioned cross-examine the said witness at Bombay. His case is that he would be deprived of the opportunity of cross-examination altogether, if his expenses are not directed to be paid by the other side. We do not know whether this plea of his is true, or not. There has been no finding on this aspect by the Court below, since it rejected the plaintiffs request on the ground of absence of power in the Court. But, let us assume that the plaintiff''s plea is true. What should happen? Should the Court be held to be powerless in the matter, and should the plaintiff be allowed to suffer prejudice because he is not in a position, financially speaking, to go over to Bombay along with his advocate and to stay there for the requisite duration? Bombay, it is well known, is afairty costly place. Even if reasonable accommodation and other amenities have to be provided to the advocate, it involves expense, and a party may not be in a position to afford the same. If a party who applies for appointment of a Commission wants such facility; he must be prepared to bear the expenses of the other side, in an appropriate case. Otherwise, he must bring his witness to the Court and examine him there in the usual course. We make it clear that this power will be exercised by the Court only where the circumstances call for it, and only where the interests of justice do require such a direction, and that such a direction will not be made as a matter of course. The power of the Court, however, to make such a direction in appropriate cases must be recognized on the same principle as is adumbrated by the Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, . This is the view taken by a Division Bench of Rajasthan High Court, comprising Wanchoo, C.J., and Dave, J. in Jiwibai v. Laxmichand Abasbhai AIR 1955 Raj 32. The Bench purported, to follow the principle of the decision of the Calcutta High Court in Nripendra Bhusan v. Pramatha Bhutan Deb, AIR 1927 Cat 907. The Rajasthan. High Court, however, has made a distinction in this behalf. It said:

"Where the commission has to be issued as a matter of course, as for example, when a witness resides more-than 200 miles from the Court house, there is no question of allowing any sum for costs of the opposite party. But where, as in this case, the person applying for commission is not entitled as of right to get himself examined on commission, the court has the power to impose such terms as it thinks fit as to the expenses of the opposite party also in case the commission is issued. This power, in our opinion, is inherent in the Court and is not taken away by Order 26, Rule 15....".

That was a case where a party applied for examining herself at her residence on the ground of her illness. It was not a case of a party applying for appointment of a Commission to examine his witness. The Division Bench was evidently referring to Rule 19 of Order XVI, which says:

"19. No one shall be ordered to attend in person to give evidence unless he resides-

(a) within the local limits of the Court''s ordinary original jurisdiction, or

(b) without such limits but at a place less than one hundred or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than five hundred''kilometres distance from the court-house:

Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person".

This Rule is clearly meant to save unnecessary inconvenience to the witness. The rule, however, does not have any bearing upon the question at issue before us. If a witness can and does refuse to attend in person, the party wishing to examine him has to take out a Commission, if he still wishes to examine him. Whether a Commission is appointed to examine a witness in such a situation or in any other situation, position is the same, so far as the question before us is concerned. It is affording the party a reasonable and adequate opportunity to establish his case. We are, therefore, of the opinion that, whether the person sought to be examined is a party himself or a witness, and whether such witness resides within 100 or 500 kilometres, or beyond, the position is the same.

For the above reasons, we hold that the civil Court does have the power, in exercise of its inherent powers, to direct in appropriate cases that the party applying for appointment of a Commission to examine witness at a distant place, should deposit into Court, or pay to the other side, such amount as it may specify, towards the expenses of the other side.

Civil Revision Petition is, accordingly, allowed and the matter is remitted to the Court below. The Court below had rejected the plaintiff''s request for such ex- penses on the ground of absence of jurisdiction only. Now that we have held that there is such a power in the Court, the Court below, shall now proceed to pass orders on the plaintiff''s request, on merits.

There shall be no order as to costs.

Revision allowed.