Mangal Singh and another vs Piara Lal

H.R. Sodhi, J.—These are three connected revision petitions arising out of suits for possession by pre-emption instituted by Piara Lal respondent The petitioners are the vendees of the different parcels of land sold under different sale-deeds. After the evidence of the plaintiff-respondent had been recorded in the three suits, a date was fixed for the evidence of the defendants-petitioners. One Shri Lashkar Singh described as Manager of Chahal Tractor Company care of Randhawa Transport, Amritsar, was summoned as a witness for the petitioners in all the three cases Sommonses were duly issued and it is not disputed that the report received from the process-serving agency was that the said Shri Lashkar Singh had left for Sombohli in the District of Meerut (U.P). When the case came up for recording of evidence, an application was made by the defendants that a commission be issued for the examination of the said Shri Lashkar Singh This application was rejected by the trial Court on 29th July, 1970 with an observation that it appeared to it that the defendants, who were in possession of the suit property were trying to prolong the proceedings. The trial Judge was also not satisfied as to how the evidence of the said witness was relevant and material to the case. In their application for the issue of commission, it was not stated as to why it was necessary to examine this witness The evidence had, of course, to be confined to the issues framed in the suit and the only thing now urged by Mr. Shant is that the evidence of the witness sought to be examined on commission was required for the purpose of showing that he had levelled the suit land after purchase by the defendants-petitioners The suggestion is that the vendees had made improvements and this evidence would be one of the links in proving the issue. No such information seems to have been given to the trial Court and, be that as it may, I am still doubtful if the evidence of that witness was really necessary Improvements could be proved by other evidence as well but I do not propose to express any opinion on the relevancy or necessity of examining Lashkar Singh The argument of Mr. Shant, learned counsel for the petitioners, is that the trial Court had earlier applied its mind and considered the evidence of Lashkar Singh necessary, since summonses were issued to him for appearance in Court and that subsequent refusal to issue a commission was an arbitrary exercise of discretion. I am afraid there is no substance in this contention. After the institution of the suit it is open to the parties to obtain summonses for the persons whose attendance they consider necessary either for giving evidence or for producing documents. There is no judicial application of the mind at that stage. All that a party has to do is, to pay in Court the requisite amount as is sufficient to defray the travelling and and other expenses of the persons summoned. A Court has also power to summon a person as a witness to give evidence or to produce any document in his possession No one can, of course, be compelled to attend in person unless he resides within the local limits of the Court''s original jurisdiction or at a distance not exceeding 200 miles from the Court house, Order 26 Rule 4 of the CPC enables a Court to issue a commission for the examination of a person who cannot be compelled to attend. This rule reads as under:

(1) Any Court may in any suit issue a commission for the-examination of-

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(c) any person in the service of the Government who cannot, in the opinion of the Court, attend without detriment to the public service.

(2) Such commission may be issued to any Court, not being a High Court, with in the local limits of whose jurisdiction such person resides or to any pleader or other person whom the Court issuing the commission may appoint.

(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.

The word ''may'' as used in'' this rule cannot be equated with ''shall'' thereby giving statutory right to the party to claim the issue of a commission. No doubt Order 16 Rule 19 provides that certain class of persons including those residing beyond 200 miles cannot through a process of the Court be forced to appear as a witness but it does not necessarily follow that commission must issue for the examination of such a person. There may be cases where process of the Court is abused and persons residing at distant places are sought to be examined on commission only to prolong the proceedings or for any other extraneous reasons. Issue of a commission, in my opinion, is a matter of discretion of the Court which has of course to be exercised not capriciously or arbitrarily but judicially, according to the circumstances to each case. The whole object of the exercise of discretion is to ensure proper administration of justice and if the issue of a commission tends to achieve that end, the Court will not be justified in refusing the request of a party in this regard. The remedy for a party, if a commission is not issued as desired by it, is not by revision u/s 115 of the CPC but the party can make it a ground of appeal if such an appeal becomes necessary against the final decree itself. The order refusing a commission is just an interlocutory one and cannot be said to be a case within the meaning of Section 115 of the Code of Civil Procedure.

For the foregoing reasons, the revision petitions are dismissed but there is no order as to costs.