Fariduddin Ahmed vs Abdul Wahab

Adami, J.—This application is directed against an order of the District Judge of Patna, directing a commission to issue for the examination of the opposite party and his wife at Dacca. The opposite party is a Reader in Arabic at the Dacca University; his wife is a girl aged about 19 who is the daughter of the petitioner. The petitioner had been appointed the certificated guardian of the girl and her property before her marriage to the opposite party. Last June when the opposite party was living in Patna, where his wife''s property is situated, he made an application for the removal of the petitioner from the guardianship and for the appointment of himself in his place. The girl was then residing with her father. The wife was enceinte, and the opposite party, who had got the appointment of Reader in the Dacca University, took away his wife from her father''s care to Dacca, and since then the opposite party and his wife have been residing in Dacca. In October or November last, when the case came on before the District Judge, the opposite party applied to be allowed to be examined on commission in Dacca, and, after hearing the objection of the petitioner, the District Judge ordered the commission to issue for the examination both of the opposite party and of his wife. The ground given by the Opposite Party for the issue of such commission was that his wife was likely to be giving birth to a child in the near future and that she would not be able to leave Dacca, nor would ho himself be able to leave her in that condition; also as Reader in Arabic at the University, it would be difficult, if not impossible, for him to leave his duty.

The grounds taken before this Court are that, though a commission may be issued for the examination of a defendant or witnesses, it is irregular to grant such a commission in the case of the plaintiff who has had the choice of forum and must abide by his choice. It is also urged that it will cause great harassment to the petitioner if he has to go to Dacca, and also, if the girl is under the charge of her husband at the time the examination is conducted on commission, it is likely that the opposite party will be able to have influence with her.

With regard to the argument that in the case of a plaintiff a commission should not issue outside the jurisdiction, the learned advocate has relied on the case of Muhammad Akbar Ali Khan v. Herbert Francis AIR 1925 Pat 125. There the plaintiff, residing in London, had instituted a suit against the defendant, residing in Patna in the Patna Court, and applied for his examination on commission in London. Das, J., after reference to the several cases, held that the plaintiff, having had the choice of forum was not entitled to claim to be examined on commission outside the jurisdiction. The cases of Kumar Sarat Kumar, Ray Vs. Ram Chandra Chatterjee, , Nadin v. Bassett [1884] 25 C.H.D. 21 and Ross v. Wood ford [1894] 1 Ch. 38 were relied on. The general ground on which an application to examine a plaintiff on commission; is refused is that the plaintiff had his choice of forum and, therefore, should not be allowed to ask for his examination elsewhere than in the Court in which he has instituted his suit.

In the present case the opposite party had no choice of forum; he himself was residing in Patna and so were his wife and the positioner, and his wife''s property was situate also in Patna. It was only because he received the appointment of Reader in Arabic at the Dacca University that he had to go to Dacca.

Under the circumstances of this case, I think that the order of the District Judge should be upheld. However, the issue of a commission to Dacca will cause the petitioner expense and trouble, and I think it should be directed that the costs of the commission to the petitioner should be deposited by the opposite party before the commission issues and I would direct accordingly. Also, if it can be managed, the learned District Judge should direct that the examination of the wife of the opposite party should be conducted in the presence of an officer of the Court at Dacca elsewhere than in the opposite party''s house.

Subject to these modifications, the application is rejected. Hearing fee two gold mohurs.