Asanand Nanak Chand Aggarval vs C.A. Ayyathurai

Kumara Pillai, J.—This Civil Revision Petition arises out of an order in a suit for damages now pending before the Temporary Additional District Judge of Trivandrum. The Plaintiff in that suit is a contractor residing at Trivandrum. Defendant 1 is a Firm of Military Contractors doing business at Ludhiana in Punjab and Defendant 2 is a commission agent residing and doing business at Amritsar, also in Punjab.

On 6-6-1955, Defendant 2 applied to the lower Court to issue a commission to examine him and his three witnesses. Two of these witnesses are persons residing at Ludhiana in Punjab and the remaining witness is a person residing at Amritsar. Defendant 2 himself is residing at Amritsar as has been stated already. These witnesses and Defendant 2 were to be examined at their places of resilience.

The Plaintiff opposed the application, but the Court below allowed it on 1-7-1955 expressly overruling the Plaintiff''s objection that the application was a mala fide move to cause delay and inconvenience to him and holding that it would be oppressive to Defendant 2 and his witnesses if the application is not allowed.

Six days later on 7-7-1955 the Plaintiff moved the lower Court to make Defendant 2 deposit the necessary amount to meet his expenses for proceeding to Amritsar and Ludhiana and instructing counsel at those places to examine the witnesses. Such expenses were to include also the Advocate''s fee for the counsel to be engaged in Punjab. Purporting to act under Order 26, Rule 15, Code of Civil Procedure, the lower Court allowed this application and ordered Defendant 2 to deposit Rs. 300.

The Civil Revision Petition is filed by Defendant 2 against the order calling upon him to deposit the said amount.

The contention urged here on his behalf is that the lower Court had no jurisdiction under Order 26, Rule 15 to direct the prospective expenses of the Plaintiff to be deposited. The Plaintiff''s counsel contended that the lower Court had the jurisdiction to pass this order not only under Order 26, Rule 15, but also u/s 151, CPC Whether the lower Court had the jurisdiction to pass the order u/s 151 or not, it is clear from the order itself that the lower Court has acted only under Order 26, Rule 15. The relevant portion of the order reads:

The prayer is opposed. But it is seen from a recent decision of the Madras High Court that the expression ''expenses of the commission'' used in Order 26, Rule 15 is wide enough to include the expenses of the opposite party as well and in proper cases the Court has power to call upon the party demanding the commission to deposit any reasonable sum it deems fit towards expenses of the opposite party, - In Re: Srinivasalu Naicker,

The decision relied upon by the learned judge as well as all the prior rulings on the subject have been considered in a later case, - The Tata Iron and Steel Co. Ltd., with its office at Jamshedpur, Calcutta Vs. S. Kader Ibrahim Rowther, , by Rajamannar C.J., and Rajagopala Ayyangar J.

Before the decision in the ''Tata Iron and Steel Co. v. Kader Ibrahim (B)'', the Madras High Court had expressed conflicting opinions as to whether the Court had jurisdiction under Order 26, Rule 15, CPC to call upon an applicant for the issue of a commission to deposit the prospective expenses of the opposite party in connection with his travel to and from the place of the examination of the witnesses and for engaging a new counsel at the place of examination.

Order 26, Rule 15, CPC provides:

Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of die 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.

Mack J., expressed an opinion in - ''Abdurahiman Settu v. Muhamad Kasam Settu'' AIR 1949 Mad 490 (C), that the words ''expenses of the commission'' referred to in the above rule, can be made to include expenses of the other parties to the litigation and that in suitable cases the Court can order under this rule the expenses of the opposite party to be deported by the party who applies for the issue of a commission.

As pointed out in (S) The Tata Iron and Steel Co. Ltd., with its office at Jamshedpur, Calcutta Vs. S. Kader Ibrahim Rowther, , the opinion of Mack J. in AIR 1949 Mad 490 (C), was only obiter. Govinda Menon J., has taken a different view in - Saboora Bivi Ammal Vs. Julaika Bivi Ammal, , wherein the point came up directly for decision. After referring to the opinion of Mack J., in AIR 1949 Mad 490 (C), Govinda Menon J., has said in that case:

It seems to me that this proposition has been very widely stated. The phrase ''expenses of the commission'' in ordinary parlance would mean only what the Commissioner has to spend for summoning witnesses and for other incidental expenses relating to the examination of the witnesses before him. No authority has been placed before in where the words have been construed in such wide terns.

In the case referred to in the order of the lower Court (S In Re: Srinivasalu Naicker, , Ramaswami J., differed from the view taken by Govinda Menon J. and adopted the opinion of Mack J. At page 139 of the report Ramaswami J. says:

It is quite true that even now the proverbial Law''s delays troubles and expenses make it impossible for the poorer and weaker party to get justice and Courts of law are open to all only in the sense that great hotels like Connemara are open to all. The endeavour of the State and the Courts has always been to minimise these inequities shutting out the Courts of justice to aggrieved persons and there is no reason why we should add by an interpretation which does not flow from the plain language of Order 26, Rule 15, CPC to these inequities, it seems to me, therefore, that the expression ''expenses of the commission'' can be construed to include the expenses of the other party to the litigation.

After referring to these cases and an unreported decision of Balakrishna Iyer J., in which that learned Judge concurred with the opinion of Govinda Menon J., and also to certain decisions of the High Courts of Calcutta, Patna and Bombay, Rajamannar C.J., and Rajagopala Ayyangar J., has said in (S) The Tata Iron and Steel Co. Ltd., with its office at Jamshedpur, Calcutta Vs. S. Kader Ibrahim Rowther, :

Having considered the matter ourselves we respectfully concur in the opinion of the learned Judges of the Bombay High Court. We are, therefore, clearly of the opinion that the expression ''expenses of the commission'' in Order 26, Rule 15, Code of Civil Procedure, does not include expenses of the opposite party and that the Court has no inherent power to travel outside Order 25, Rule 15, Code of Civil Procedure, and impose conditions not warranted by that or any other specific statutory provisions in that regard.

The Bombay case referred to by their Lordships is - Kanji Karsondas and Others Vs. Nathubhai Khimji, That case also was decided by a Division Bench, and it was held therein:

The words ''expenses of the commission'' in Order 26, Rule 13 do not include costs of opponent''s pleader or the cost which the opponent himself may have to incur to go to die place where the Commissioner going to examine the witness. The expression denotes only the fees paid to the Commissioner and other expenses directly incidental to the issue and execution of the commission.

The same view has been taken by die Rajasthan High Court in - ''Jiwibai v. Laxmichand Abashbhai'' AIR 1933 Raj 32. (F). But that High Court has also taken the view that though the expenses of the other party cannot be ordered to be deposited under Order 26, Rule 15, Code of Civil Procedure, the Court can ask for such a deposit under its inherent powers.

Thus the trend of the decisions of all the High Courts is that the expression expenses of the commission in Order 26, Rule 15, CPC does not include the expenses of the opposite party and includes only the Commissioner''s fee and the expenses incurred by the Commissioner in connection with the execution of the Commission. We are also of the same opinion and consider that the expression cannot be given the wide construction it has received at the hands of Mack J.

Consequently we hold that the lower Court: had no jurisdiction under Order 26, Rule 15, CPC to pass the order impugned in this Revision Petition.

The Respondent''s Counsel sought to maintain the order as one passed under the inherent powers of the Court. But the order itself purports to be one passed under Order 26, Rule 15 and does not purport to be an order u/s 151. Whether the Court has got the power u/s 151 to call upon an applicant for the issue of a commission to deposit the prospective costs of the opposite putty or not, we are of the opinion that it had no jurisdiction at all to pass the present order under that section.

The inherent powers of the Court are invoked only in eases not covered by the express provisions'' of tile Code and where die exercise of such powers is necessary for the ends of justice or to prevent the abuse of ''the process of Court. In the present case, the lower Court has found that the application for the issue of a commission was not Actuated by any, mala fide motive and that it would be oppressive to Defendant 2 to refuse it.

The issue of the commission was therefore absolutely necessary for the ends of justice, and cannot be said to be any abuse of the process of Court. In this case, there was thus no abuse of the process of the Court to be prevented and the ends of justice required that the right to ask for the issue of a commission should be allowed to be freely exercised rather than curtailed.

The fact that the exercise of this lawful right which is so absolutely necessary for the ends of justice will cause soma hardship to the Plaintiff can-not be taken as constituting sufficient ground for the invocation of the inherent powers of the Court.

We do not desire to express any opinion in this case as to whether in appropriate cases the Court can in exercise of its inherent powers call upon an applicant for the issue of a commission to deposit the expenses of the other party as a condition precedent for allowing the application.

The views of the other High Courts on this question are not uniform. Some have taken the view that in exorcise of its inherent powers the Court can call upon the applicant to make this deposit and some have taken the view that the deposit in this respect cannot be ordered to be made u/s 151, Code of Civil Procedure.

We, however, desire to point out that if the Court considers an application for the issue of a commission to have been made on account of any mala fide motive or for the purpose of harassing the1 opposite party and delaying the trial of the suit, it is open to the Court to refuse the application and that some of the hardships and difficulties pointed out by Ramaswami J., in (S) In Re: Srinivasalu Naicker, can thus be avoided.

For the reasons stated above, we bold that the order of the lower Court calling upon Defendant 2 to deposit Rs. 300 for meeting the Plaintiff''s expenses in connection with the commission is one passed without jurisdiction. We accordingly set it aside and direct that the commission already ordered shall be issued without any such condition. The parties will bear their costs in this Court.