Gurpal Kaur vs Charan Kaur and others

Pritpal Singh, J.—Gurpal Kaur and her minor children, Miss Satwinder Rai and Jastinder Singh Rai, have filed a suit for possession of land on the basis of a Will. The plaintiff Gurpal Kaur as well as the attesting witnesses of the Will are residing in West Germany. An application was, therefore, filed by the plaintiffs under section 78 and Order XXVI Rule 4 of the Code of Civil Procedure (hereinafter called ''the Code'') to examine the plaintiff and her witnesses on commission. This application was dismissed by the trial Court vide an order dated December 7, 1983. This revision petition has been filed by the plaintiffs to challenge the said order.

Admittedly, the witness sought to be examined are relevant witnesses. All of them are living outside the jurisdiction of the Court and are, therefore, not amenable to the process of the Court. The trial Court has refused to issue commission to examine these witnesses in West Germany on three grounds. Firstly, that the Court will be deprived of watching the demeanour of the witnesses. Secondly, the entire cross examination of the defendants will become known to the witnesses. Thirdly, the defendants will have to bear lot of expenses. In my view all these grounds are irrelevant and the trial Court was not justified in refusing to exercise jurisdiction vested in it under Order XXVI, Rule 4 of the Code taking these factors into consideration.

In the context of the demeanour of the witnesses, it cannot be lost sight of that civil cases are handled at the trial stage by several Subordinate Judges and rarely a suit is decided by the same Subordinate Judge who records the entire evidence. The recording of evidence of a witness on commission living outside the territorial jurisdiction of the Court, therefore, cannot be refused simply on the ground that the Court will be unable to watch the demeanour of the witnesses. The statutory right vested in a party to litigation to get himself and his witnesses examined on commission cannot be overridden by such a consideration. The same argument will apply to the other ground that the entire crossexamination of the defendants will become known to the witnesses. If the issue of commission is to be declined on this ground then probably in no case the evidence of a witness could be recorded on commission.

Nor do I find any force in the argument that the defendant will have to undergo expenditure if the commission is issued. This would be true in all cases in which a commission is issued to distant place.

Thus the refusal to issue commission prayed for by the plaintiffs is a clear denial of justice. The trial Court has evidently committed material illegality and irregularity in declining to grant the plaintiffs'' application. All that the trial Court had to determine in a case like this was whether the application had been made in good faith and not merely to delay the disposal of the suit or to cause some embarrassment to the opposite party. An application made in good faith has to be normally allowed by the Court and cannot be rejected. In the present case the good faith is beyond doubt. The witnesses are living in West Germany and the plaintiffs can have no motive to delay the disposal of the suit. In such a case the Court is not justified in declining to issue commission on the aforementioned wholly irrelevant grounds. I am supported in this view by an earlier judgment of this Court in Pritam Singh v. Smt. Vidya and another, 1976 P.L.R. 877.

It was brought to my notice that there is no reciprocal agreement between India and West Germany for the examination of witnesses. This matter was considered in M/s. Filmistan Private Ltd., Bombay v. M/s. Bhawandas Santprakash, AIR 1971 Supreme Court 61, and it was held that the power of the Court to issue commission is not subject to any reciprocal agreement between the Governments. It was observed that section 77 of the Code read with section 75 empowers the Court to issue a letter of request to any person other than a Court to examine witnesses residing at any place not within India and this power of the Court is irrespective of any reciprocal agreement between the Governments.

For the reasons mentioned above, I allow this revision, set aside the impugned order of the trial Court and grant the application of the plaintiffs under Order XXVI, Rule 4 of the Code for the examination of the witnesses on commission. The parties have been directed to appear before the trial Court on October 10, 1985. No order as to costs.