M.J. Sheth and Co. vs Ramiza Bi and Another

Abdur Rahman, J.—This is a revision petition against the order of the District Munsiff of Vellore dismissing an application made by the

plaintiff for the issue of a commission to examine his witnesses residing at Bangalore. The District Munsiff has passed a very perfunctory order and

has really not applied his mind to the grounds mentioned by the plaintiff in his affidavit. He has chosen to dismiss the application, as it appears to

have been urged before him that the number of witnesses to be examined on commission was large and it would be rather expensive for the plaintiff

to bring them down to Vellore. Had the District Munsiff taken the trouble to read the affidavit filed on behalf of the plaintiff, he would have found a

clear statement in paragraph 4 that his witnesses were permanent residents of Bangalore within the native state of Mysore, and that they could not

be compelled to go to Vellore to give evidence in the case. It is true that in that paragraph a further ground was added that it would be expensive

and inconvenient for the plaintiff to bring his witnesses to Vellore; but the fact that the witnesses were residing within the limits of an Indian State

was clearly alleged and it was stated in paragraphs 3 and 4 of that affidavit that being in the know of things it was essential for the plaintiff to

produce them in order to establish his case.

The facts mentioned by me would show that this application falls within the ambit of Order 26, Rule 5 of the CPC and Order 26, Rule 4, Civil

Procedure Code, has really no application to the facts of this case. The only question, then, on which the lower Court had to satisfy itself was

whether the evidence of these persons was necessary. If it were of the opinion that it was, the lower Court had no further discretion in the matter

and the commission should have been ordered to be issued as a matter of course.

The learned Counsel for the respondents contended in the first instance that Bangalore should not be regarded as being outside British India

inasmuch as the Maharajah of Mysore had ceded the Civil and Military Station of Bangalore for certain purposes to the British Government and

had renounced the exercise of civil and criminal jurisdiction within that area. The argument has no substance and must be rejected. Bangalore does

not fall within the definition of British India as given in the General Clauses Act and cannot therefore be held to be a part of British India. If it were

a part of British India, the provisions of Order 26, Rule 5 would not be applicable but one would have to look at Order 26, Rule 4, Civil

Procedure Code, in order to decide if a commission should have been ordered to be issued. In view of my finding that Bangalore is beyond the

limits of British India it is unnecessary for me to consider Order 26, Rule 4, Civil Procedure Code.

The learned Counsel for the respondents next contended that the order being discretionary in nature was not open to revision and that the High

Court should not interfere with it as the discretion has been exercised by the lower Court in favour of the respondents. A number of authorities

have been cited by him in support of the above proposition and one will have to look into them closely before arriving at a conclusion.

Turning now to the authorities, I find that he placed his reliance to start with on two Bombay decisions, namely, Mowji Dharamsey v.

Nemchand Naranji I.L.R.(1899) 23 Bom. 626 and Dhanbai Burjorji Cooper Vs. Bablibai Shapurji Sorabji, . In the first case an application for

examination on commission of the defendant and his witnesses was refused, as the defendant had happened to be within the jurisdiction of that

Court on the Sunday previous to the hearing of the petition and it was admitted that the witnesses frequently returned to Bombay in the ordinary

course of their business. As for the second Bombay ruling relied on by the respondent''s counsel, I find that the learned Chief Justice was dealing

with Order 26, Rule 4, Civil Procedure Code, and not with Order 26, Rule 5. Moreover he was mainly concerned in that case with the question

whether an order refusing to issue a commission was appealable. Having come to the conclusion that it did not fall within the meaning of the word

''judgment'' as used in Clause 15 of the Letters Patent, he held that an appeal from an order refusing to issue a commission was not competent. It is

thus clear that both the Bombay decisions have no application to the facts of the present case. It is true that there are certain observations in the

later judgment which may be of some assistance to the respondent, since it was suggested that the rights of the applicant in that case were not

finally determined and that another remedy would be available to her when the matter comes up before the appellate Court. She could then

contend that the order refusing to issue a commission was wrong. With very great deference to the learned Chief Justice''s opinion I am unable to

agree with his remarks although I must state that they were made with an entirely different object. But the respondent wishes to avail himself of

them with the object of showing that another remedy was open to the petitioner and the order should not therefore be interfered at this stage.

Taking this very case as an illustration, it seems to me, that if all the important witnesses of the plaintiff are residing in Bangalore and a commission

is not issued to examine them, the suit is bound to be dismissed. The plaintiff would then be left with the remedy of filing an appeal against the

decree of dismissal and he will have then to ask for a remand on the ground that the trial Court was not justified in refusing to issue a commission

and depriving him of the opportunity of producing his evidence and substantiating his allegations. Assuming that his contention is accepted in the

end, it appears to me that it will be done after a great deal of mischief has been done. One of the primary concerns of the Courts of Law ought to

be to avoid unnecessary delay and waste of money as far as it is possible to do so in the administration of justice, and it is fairly apparent that this

object would not be achieved if the order is found to be wrong or illegal and is not set aside now.

The third decision on which he placed his reliance was that of the Calcutta High Court in Phanindra Krishna Dutt Vs. Raja Promatha Nath

Malia, . This, again in my opinion, has no application to the facts of the present case. An application for issue of commission was made in that case

under Order 26, Rule 1, Civil Procedure Code, on the ground that the party was sick and unable to attend Court. The lower Court found for a

fact, although its judgment is stated to have been not very happily worded, that the party applying for his statement to be recorded on commission

was sick and not in a condition to appear in Court. It was only this fact, that is, that of sickness which was held to have conferred jurisdiction on

the lower Court to issue the commission. The learned Chief Justice of that Court, in view of the finding of fact, held that the order was not capable

of revision. He refused to go into the question in that case, whether such orders could be revised by the High Court or No. This will be clear from

the following observations which he appears to have made at page 423:

In the present case it is not necessary for me to discuss that particular question. Given the fact that the Court is satisfied under Rule 1, Order 26,

that the person is sick and unable to attend Court and that the Court has exercised its discretion as to whether in those circumstances a commission

should issue and has issued a commission, I am clearly of opinion that that discretion cannot be revised u/s 115, Civil Procedure Code, whether

the judgment of the Court below on this interlocutory application consists of a complete treatise on the subject or an incomplete treatise on the

subject.

So far as the Madras view is concerned, there is a ruling In re The Nizam of Hyderabad I.L.R.(1886) 9 Mad. 256 which lays down that

Section 622 of the old CPC was not applicable to applications for issue of a commission which has been either ordered or refused by the lower

Court; but the decision, as in the second Bombay ruling cited above, is based really on the question whether the order issuing or refusing to issue a

commission was in the nature of a decree. In subsequent authorities, however, it has not been disputed that an order of this nature is subject to

revision and in fact in no less than six cases both of this Court and that of Calcutta which were brought to my notice do I find that the orders

passed by the lower Courts were actually revised by various Judges. It is hardly material for me to discuss the circumstances in which the orders

were revised. It is quite sufficient to note for this purpose that in every one of them the orders passed by the Courts below were revised by the

High Courts. See Mahalakshmi Ammal Vs. Venkata Naicker and Another, , Subbayya Pillai v. Nellayappa Pillai (1932) 65 M.L.J. 334, Kasi

Chettiar v. Venkatachalam Chettiar (1933) M.W.N. 648 Jagannatha Sastri v. Saradambal Ammal (1922) 44 M.L.J. 202 : ILR 46 Mad. 574,

Rajagopala Pillai v. Kasi Viswanathan Chettiar (1933) 67 M.L.J. 95 : ILR 57 Mad. 705, A.P.S. Muhammad Ibrahim Vs. Allapichai Rowther, and

Kumar Sarat Kumar Ray v. Ram Chandra Chatterji (1921) 35 C.L.J. 78.

An examination of these authorities has led me to the conclusion that the Courts have held that they had jurisdiction to interfere in revision even

in interlocutory proceedings, if they were satisfied that the decision against which the revision was filed was wrong and illegal and I see no reason

to adopt another view.

Coming to the merits of the petition, I find that the question of bona fides of the application was not even raised in this case and nothing has been

said by the respondent''s counsel in the course of his argument which would show that the examination of these witnesses is not necessary for the

plaintiff to establish his case. I would therefore accept this revision, set aside the order of the Court below and order that a commission for the

examination of the witnesses cited by the plaintiff and residing in Bangalore be issued in the ordinary course. The plaintiff is however directed to

take care that the case is not unnecessarily delayed and it is for the District Munsiff to see that no dilatory tactics are employed by either party in

this matter.

The plaintiff has succeeded in this application and must therefore get his costs in this petition.