D.S. Kanniah Chetty and Co. vs Pulipati Subba Rao

Owen Compton Beasley, Kt., C.J.—The question in this case is whether the District Munsif should have ordered the travelling expenses of

the petitioner and a subsistence allowance, the petitioner having been the successful defendant in the suit in the sense that he was a partner in the

firm sued. Being a partner in the firm, he may be taken to be a party to the suit. He gave evidence in support of the defendants'' case. He resides in

Madras where the partnership to which he belongs carries on business. In order to fight the case he had to go from Madras to Bezwada, I am told

on two occasions and of course incurred railway travelling expenses and there may have been some other small expenses which he also incurred.

His expenses as a witness have been disallowed; and the question is whether that was a correct order. The only order of the CPC which deals

with a position anything like this appears to me to be Order 16, Rule 21 which reads.

where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him as far as they are

applicable.

It is argued by the respondent here and the same view was taken in the lower Court that ""being required to give evidence"" means being required

by the other party to the suit to give evidence and it appears to me it has been interpreted in that way by the Calcutta High Court which has

substituted a rule of its own for Rule 21 which is as follows:

(1) When a party to a suit is required by any other party thereto to give evidence or to produce a document, the provision as to witnesses shall

apply to him so far as applicable.

(2) When a party to a suit gives evidence on his own behalf, the court may, in its discretion, permit him to include as costs in the suit a sum of

money equal to the amount payable for travelling and other expenses to other witnesses in the case of similar standing.

It seems to me that by this rule the Calcutta High Court has by drawing a distinction between the two cases, been of the opinion that the

unaltered Rule 2 of Order 16 applies only to the case where a party to a suit has been called to give evidence by the other party. There does not

appear to me to be any power under the CPC to order the travelling expenses of a party who has given evidence in support of his own case. It

seems to me to be a very serious omission particularly in view of the fact that there are cases in England and also a case quoted by the Bombay

High Court which show that when parties to suits come from foreign parts to give evidence in support of their own case, they can be given their

travelling expenses and subsistence allowance which they have incurred. It seems to me that a similar rule to that framed and adopted by the

Calcutta High Court should be made applicable to this High Court; there being no such rule, I am bound to hold that the order of the lower court

was quite correct and this petition must be dismissed with costs.