Paul Samuel alias Paulraj Samuel and Another vs Koil Pitchai Anandhadurai

Pratap Singh, J.—The revision is directed against the order in I.A. No. 921 of 1992 in O.S. No. 25 of 1986 on the file of the Subordinate

Judge, Tuticorin, allowing the said application filed by the respondent herein under Order 26, Rule 1, CPC for appointment of an advocate-

Commissioner to examine two witnesses Perumal Nadar and Piramanayagam Pillai, who are stated to have attested two wills.

The case of the petitioners in the court below is that to prove the two Wills concerned in the suit the respondent had to examine two witnesses

Perumal Nadar and Piramanayagam Pillai who are stated to have attested the two Wills and they were not in a position to come to Court and

depose, and so an advocate Commissioner is to be appointed to examine them. The said application was resisted by the petitioners herein

contending that there was noexecution of Wills at all and both Perumal Nadar and Piramanayagam Pillai were doing well and were living just 30

kms. away from the court premises and they could come to court freely to depose and no commission need be appointed to examine them. After

hearing both the parties, the learned Subordinate Judge, has allowed the said application. Aggrieved by the same, the petitioners have filed the

present revision petition.

Mrs. Chitra Sampath, learned Counsel for the petitioners would submit that the court below had not exercised its discretion in a judicial manner

and therefore, the impugned order is liable to be set aside. Per contra, Mr. Peppin Fernando, learned Counsel for the respondent would submit

that this revision itself is not maintainable u/s 115 of the CPC and hence the same is liable to be dismissed. He would further submit that on merits

also the order is correct.

I have carefully considered the submissions made by the rival counsels. In the affidavit filed by the respondent herein in the court below, he has

stated in paragraph 3 as follows:.

To prove the two Wills, I have to examine one Perumal Nadar who had attested two wills and one Piramanayagam Pillai who had attested position

to come to this Hon''ble Court. Perumal Nadar had broken one of his legs by falling down from the Palmyrah tree. He is bedridden. The other

witness is a heart patient. So the abovesaid two witnesses have to be examined on Commission at their residence.

The above allegations are stoutly refuted by the petitioners herein in paragraph 2 of the counter filed on behalf of the 7th respondent before the

lower court. It runs as follows:

....There was no execution of Will at all. Perumal Nadar, did not break his leg as alleged. He is not bedridden. Piramanayagam Pillai is not a heart

patient as alleged. The residences of the alleged witnesses are situated only about 30 kms. from this Hon''ble Court. The proposed witnesses can

come to this Hon""ble Court and depose freely. There is no necessity for examining them on commission.

When there is an allegation by the respondent herein that the above said two witnesses are not in a position to come to court and depose about the

execution of the wills concerned, in the suit and when the said allegation is stoutly denied by the petitioners herein, the court below is obliged to find

out whether the proposed witnesses are unable to attend the court because of their sickness or infirmity and decide the matter. For the purpose of

convenience, the relevant portion of Order 26, Rule 1, CPC is extracted hereunder:

Cases in which Court may issue commission to examine witness: Any court may in any suit issue a Commission for the examination on

interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the

court or who is from sickness or infirmity unable to attend it.

A reading of the above provision would clearly visualise only two contingencies, in which the court may issue a Commission to examine a witness

namely:

(i) where a witness resides within the local limits of its jurisdiction who is exempted under this Rule from attending the Court; and

(ii) a witness who is unable to attend the court because of his sickness and infirmity.

In the instant case, the respondent herein wanted to examine two witnesses on commission because they were sick and infirm and therefore, they

fall under the latter category refereed to supra. So it is incumbent on the part of the Court to first find out whether the witnesses sought to be

examined on commission would fall under category (ii), and then only appointment of an advocate-Commissioner to examine them on commission

would arise. But the court below has stated in its order that it is not possible to decide in the petition before it as to whether the witnesses are

keeping good health or whether they are sick, as if it is not necessary. But it is a sine quanon before passing an order of appointment of an

advocate-Commissioner, to examine whether the witnesses are keeping good health or not. But the court below without deciding the main issue

and when that aspect has not been decided, ordered appointment of a Commissioner and such an order cannot be sustained and has to be

necessarily set aside.

Mr. Peppin Fernando, learned Counsel for the respondent would submit that this revision petition u/s 115, CPC is not an appealable order and

unless it falls within Clause (a) or (b) of Proviso to Section 115, C.P.C., no revision will lie and the instant case will not fall either under Clause (a)

or (b) of the Proviso to Section 115, C.P.C. For the purpose of convenience, I shall extract the proviso to Section 115, C.P.C., which reads as

follows:

Provided that the High Court, shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit

or other proceeding, except where-(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the

suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against

whom it is made.

Mrs. Chitra Sampath, learned Counsel for the petitioners would submit that the case on hand would fall under Clause (b), mentioned above and

the Court below had not applied its mind at all to the essential pre-requisite condition, which alone would enable the Court to appoint a

commission for examination of the witnesses and as such it would follow that there will be a failure of justice so far as the affected party is

concerned.

Mr. Peppin Fernando, learned Counsel for the respondent would rely upon Filmistan Private Ltd., Bombay Vs. Bhagwandas Santprakash and

Another, , in support of his contention. In that case, the witnesses who were sought to be examined on commission were residing in Kabul and an

order was passed directing issue of letter of request to the Indian Ambassador at Kabul to examine certain witnesses who were residing at Kabul

on Commission. That order was challenged before the Apex Court. The Apex Court has held that the fact the witnesses examined on commission

cannot be effectively cross-examined or their examination will entail heavy costs are not sufficient circumstances to interfere with the discretion of

the learned trial Judge. The facts of this case are totally different from the facts of the case cited supra. In the instant case discretion was not at all

exercised by the court below, leave alone the judicial discretion.

In Chinna alias Sabapathi Gounden v. Ambanda Moorthi alias Thandi Gayvela Gounder, 33 I.C. 520, relied on by the learned Counsel for the

respondent, it was held that the High Court ought not to sit in appeal over every exercise of discretion by the Court below, even though under the

law no appeal is given to the party against whom the discretion has been exercised. Here again, I would like to point out that in the instant case, it

is not as if the discretion was exercised by the court below and the same is challenged herein. The court below has not at all exercised its

discretion.

In Nityanandam and Ors. v. Habeen Aysha and three others (1992) 1 L.W. 656, relied on by the learned Counsel for the petitioners, a Division

Bench of this Court has held that the discretion of court is a judicial discretion and its exercise is guided by well-settled principles of law. On a

consideration of law and facts, I am clear that the instant case will fall within Clause (b) of Proviso to Section 115, CPC and the present revision

petition is maintainable.

In the result, the order of the court below is set aside and the matter is remitted back to the Court below for fresh disposal according to law in

the light of the observations made in the Course of this order and in the light of the clear provisions of Order 26, Rule 1, C.P.C. No Costs.