(Babu) Gulab Rai Ghutghutia vs (Babu) Mahendra Nath Sreemani

Varma, J.—This is an application in revision by the defendant Gulab Rai Ghutghutia in a suit brought by the plaintiff Mahendra Nath Sreemani for specific performance. The defendant-petitioner prays that the order dated 31st July 1933, passed by the Subordinate Judge of Jamtara, allowing the application of the plaintiff-opposite party to be examined on commission at Calcutta, be sat aside. It is contended on behalf of the defendant-petitioner that as the plaintiff wants to get himself examined on commission, he could make out a special case and the costs incurred for his examination ought to be allowed to the defendant. The plaintiff''s application to the Subordinate Judge was to the effect that he was old and too unwell to undertake a journey from Calcutta to Jamtara and the Subordinate Judge has on this application passed the order appealed against.

Mr. Manohar Lal on behalf of the petitioner contends that when the plaintiff has chosen his own forum, he should not be examined on commission without paying costs incurred for the purpose. Mr. Baikuntha Nath Mitra on behalf of the plaintiffs-opposite party urges that S. 16 (d), Civil P.C., clearly provides that in a case of specific performance the suit should be filed in a Court within whose jurisdiction the property lies. But then there is a proviso to S. 16 which makes it clear that if the defendant, from whom the plaintiff claims redress, resides at a particular place, the suit may be instituted at that place as well.

Both the petitioner and the opposite, party have cited a number of cases; the petitioner to emphasise the point that whatever may be the position with regard to the issue of commissions for the examination of witnesses, when the plaintiff has a choice of forum and has filed a suit in the forum of his own choice, he is not entitled to have a commission issued unless under very exceptional circumstances. The authority cited by Mr. Manohar Lal on behalf of the defendant-petitioner is the decision in Muhammad Akbar Ali Khan v. Herbert Francis, 1925 Pat 125 = 84 I C 993 = 3 Pat 863. This case deals with the decision in Ross v. Woodford, (1894) 1 Ch D 38 = 63 L J Ch 191 = 70 L T 22 = 42 W R 188 which lays down the principle that the case of the plaintiff stands on a different footing from that of a defendant or a witness when the question arises as to whether a commission should issue for examination or not. Although in the Civil Procedure Code, I do not find any distinction drawn anywhere so far as this point is concerned between a plaintiff, a defendant or a witness, yet as a rule of prudence, I would most respectfully agree with the decision reported in Muhammad Akbar Ali Khan v. Herbert Francis, 1925 Pat 125 = 84 I C 993 = 3 Pat 863. Mr. Monohar Lal next relies on the decision in Sarat Kumar Ray v. Ram Chandra, 1922 Cal 42 = 68 I C 9 which also favours his contention.

Mr. Baikuntha Nath Mitter on the other hand refers to the decision in Phanindra Krishna v. Raja Pramatha Nath, 1928 Cal 421 = 106 I C 880 = 55 Cal 748 in support of the proposition that the High Court could not lightly interfere with orders passed by the Court below, for examination on commission. That case however is clearly distinguishable from the present one, because in that case commission was issued for the examination of a defendant, whereas in the present case the commission has been issued by the lower Court for the examination to the plaintiff who has chosen his own forum. Mr. Mitter next cites the decision in Jagannatha Sastri v. Sarathambal Ammal, 1923 Mad 321 = 71 I C 530 = 46 Mad 574. That decision again refers to the examination of a witness on commission which is not the case here. In that case commission was refused by the lower Court but their Lordships of the Madras High Court directed that a commission should issue for the examination of the witness. The third case relied on by Mr. Mitter is the decision in Ramalinga Aiyar v. Sankara Narayana, 1929 Mad 192 = 114 I.C. 843. That also is a case dealing with examination of a witness on commission and is not applicable here. Lastly Mr. Mitter cites the decision in Fariduddin Ahmad v. Abdul Wahab, 1926 Pat 277 = 94 I C 229 for the proposition that where the plaintiff had no choice of forum, he might be permitted to examine himself on commission. But as I have already pointed out, S. 16, Civil P.C., makes the position distinctly clear. In the case in band the plaintiff clearly had a choice of forum and elected to file his suit in Jamtara.

The question now is that in view of the cases cited on both sides and the circumstance of the present case what order should he passed. The plaintiff has clearly selected his own forum; at the same time it is risky to compel him to come to Jamtara for examination at the present stage of his life as the journey from Calcutta to Jamtara might prove harmful. In the circumstances I would uphold the first part of the order of the Court below and direct that a commission do issue for the examination of the plaintiff at Calcutta, but the plaintiff must pay the defendant sufficient costs to enable the latter to make adequate arrangements for his cross-examination, as was done in the case reported in Sarat Kumar Ray v. Ram Chandra, 1922 Cal 42 = 68 I C 9. The amount of costs for the commission to be paid by the plaintiff should be fixed by the learned Court below but the payment of the costs will be a condition precedent to the carrying out of this Court''s order, and the money will be retained by the defendant irrespective of the result of the suit. I would further direct that the plaintiff be examined at a place different from his own residence. The parties will bear their own costs in this application.