Pritam Singh vs Smt. Vidya and another

R.S. Narula, C.J.—The Plaintiff-Petitioner filed a suit for possession of certain land which was originally owned by one Ganga Ram. The main basis of the claim is a will which is alleged to have been executed by Ganga Ram in favour of the Petitioner at Nagpur on November 15, 1957. Defendant-Respondent No. 1 Smt. Vidya contested the suit on the ground that she is the widow and sole heir of Ganga Ram. She has denied the execution of the will by the deceased. In order to prove the will the Plaintiff-Petitioner wanted to examine both of its attesting witnesses. Admittedly none of those attesting witnesses resides within the local limits of the jurisdiction of the trial Court at Garhshankar. They are residents of Nagpur which place is not only not less than 200 miles away from the Court at Garh-shankar, but is in fact more than a thousand miles away in Maharashtra. The Plaintiff, therefore, made an application under Order 26 Rule 4 of the CPC for examining the two attesting witnesses at Nagpur on commission. The application was opposed by Defendant-Respondent No. 1. In fact she made a cross-application for directing the Plaintiff to examine the two attesting witnesses in the Court at Garhshankar. After noticing the rival contentions of the parties. Sari S. N. Aggarwal, Subordinate Judge Second Class, Hoshiarpur at Garshankar, declined the prayer of the Plaintiff-Petitioner, accepted the application of the Defendant-Respondent and directed the Plaintiff to produce his witnesses in Court "at his own responsibility",. The Plaintiff has come up in revision against that order.

Mr. H. S. Sra, Learned Counsel for the Defendant-Respondents, has raised a preliminary objection to the maintainability of this petition. His argument is that an order declining to issue a commission under Order 26 Rule 4 of the Code is not revisable u/s 115. Counsel has cired two judgments in favour of his submission. First is the judgment of H. R. Sodhi, J. (as he then was) in Mangal Singh and other v. Piara Lal 1971 P.L.R. 531. In a vendee''s suit for possession instituted at Amritsar, the Defendant made an application after the conclusion of the Plaintiff''s evidence and on the date fixed for the Defendant''s evidence to examine a witness in Sombohli, district Meerut, on commission as the report on the summons sent to the witness was that the witness had gone to that place The learned trial Judge rejected the application of the Defendant with the observation that it appeared to him that the Defendant who was in possession of the suit property was trying to prolong the proceedings. The learned Subordinate Judge also gave expression to the view that he was not satisfied as to how evidence of the said witness was relevant to the material issue in the case. In the application for issue of commission it had not been stated as to why it was necessary to examine the witness at all. It was in those circumstances that while dismissing the petition for revision of the order of the Subordinate Judge this Court observed that though a witness resident beyond 200 miles of the Court cannot be forced to appear, it does not follow that the commission roust be issued for his examination as there may be cases where the process of the Court is sought to be 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". No such consideration applies to the present case. It was against the refusal to issue a commission in the case of the above type (where the trial Court had distinctly recorded the finding that the application had been made to delay the proceedings and without any justification) that the learned Judge held that the remedy for the aggrieved party was not to come up by revision u/s 115 of the Code of Civil Procedure, but to make non-issue of the commission a ground of appeal against the final decree passed in the suit.

The second case to which reference has been made by Mr. Sra is the Single Bench judgment of Pattar, J. (as he then was) in Messrs Mohinder Kumar Rajinder Parkash v. Basheshar Nath 1976 P.L.R. 280. It was held by the learned Judge that an order refusing to appoint a local commissioner under Order 26 Rule 9 of the Code to make measurements on the spot to determine whether the Plaintiffs were given possession of the lend in dispute or not was a matter of discretion which was not revisable u/s 115 of the Code. The judgment is not relevant for the present case as there is a good deal of difference between the issue of a commission for local investigation under Order 26 Rule 9 on the one hand and the issue of commission for examining an essential witness under Order 26 Rule 4 of the Code. Very different considerations apply to the cases.

Mr. M. S. Rakkar, Learned Counsel for the Plaintiff-Petitioner, has on the other hard invited my attention to the judgment of Mehar Singh, C.J.. in Shri Dhanna Singh v. Shri Kishan Chand 1967 P.L.R. SN 2. The learned Chief Justice held:-

it appears at least from Order 16, Rule 19 of the CPC (V of 1908) that a witness, even if he is a Defendant and has to appear as a witness on his own behalf and lives beyond two hundred miles of situation of the Court, cannot be compelled to appear in Court in person. If this is not a case of refusal to exercise jurisdiction, it obviously is a case of material irregularity in the exercise of its jurisdiction by the trial Court in not issuing commission to the Defendant for his examination as his own witness in the circumstances of the case.

Reliance for the view taken by the learned Chief Justice was placed by him on the judgment of the Lahore High Court in T. W. V. Evers v. The American Motor Company through Latif Ahmad. In A. V. Nataraja Konar v. Poovalingam Pillar (1967)11 M.L.J. 369. it has been held that the issue of commission in respect of cases falling under Order 2 Rule 4 is not one of discretion, but it is in the nature of a statutory right of the litigant. The only proviso added to that rule by the learned Judge of the Madras High Court is that the commission may be declined where the party praying for it is guilty of latches.

A Single Bench of the Andhra Pradesh High Court held in Gadamsetty Subrahmanyam Vs. Gadamsetty Venkayya and Another, , that though the Court has discretion in issuing a commission for the examination of the parties to the suit or a person in the employment of the party, position with regard to an independent witness is different. It was held the witness residing at a distance of more than 200 miles has a right to be examined on commission whether his evidence is of any benefit to the party examining him or not subject only to two conditions namely (i) he is not within the control of the pary making the application, and (ii) the application is not an abuse of the process of Court or actuated by mala fides of fraud. This case had been cited by Mr. jakkar merely as an instance to show that revisional powers were exercised by the High Court in a similar case, and the order refusing to issue commsion was set aside, and reversed by the High Court in exercise of its revisional jurisdiction.

In S. Thakar Singh and Anr. v. Karriers Finance Pvt. Ltd. 1969 P.L.R.(D.S.)213, Tatachari. J. of the Delhi High Court has held:-

Where the trial Court does not exercise the jurisdiction judicially in the sense that relevant and important circumstances are not taken into consideration, the order of the lower Court can be set aside in revision u/s 115 of the CPC Also when the discretion is exercised or a wrong or incorrect principle resulting in serious prejudice or injury to a party, the High Court will be justified in interfering with it. Where the lower Court does not take into consideration some important circumstances and passes an order without applying the correct principle that where an order amount to a denial of justice and is bound to result in manifest injury to the party, it should not be passed, tie order is open revision

A Division Bench of the Patna High Court held a petition for revision of an order refusing the Defendant''s application for issue of a commission to examine her husband as maintainable and allowed her revision petition in Mrs. Zohada Begum Saheba Vs. Haji Dawood Ayed, Firm and Others, , on the ground that the refusal to issue the commission amounted to a material irregularity in the exercise of the trial Court''s jurisdiction.

In the case before me, the learned trial Court has refused to exercise jurisdiction vested in it under Order 26 Rule 4 of the Code on grounds which are wholly irrelevant to a case where independent witnesses living outside the jurisdiction of the Court and beyond 200 miles are sought to be examined by a Plaintiff who has no control over the witnesses and without whose evidence the Plaintiff cannot possibly succeed. The application for issue of commission was made at the earliest opportunity. Refusal to issue commission paryed for in this case amounts to clear denial of justice and is likely to result in manifest(sic) injury to the Plaintiff. Interference in exercise of provisional jurisdiction with an order of this type is the duty of the Court. From whatever angle the matter may be looked of, the minimum that can be said is that the learned Subordinate Judge has committed material illegality and irregularity in the exercise of his jurisdiction under Order 26 Rule 4 of the CPC in declining to grant the Plaintiff''s application. In a case of this type even if it could be held that the decision of the trial Court is not a case decided "within the meaning of Section 115 of the Code. 1 would have treated this petition as one under Article 227 of the Constitution and would have reversed the order of the trial Court in the exercise of this Court''s constitutional jurisdiction under that provision of law. I have, therefore, no hesitation in repelling the preliminary objection of the Learned Counsel for the Respondents.

Coining to the merits of the controversy it appears that the learned trial Court refused to issue commission on the following five grounds:-

(i) the Plaintiff has no right to examine his witnesses on commission in the light of the law laid down in the Union of India v. Messrs Natabarlal Jayashankar AIR 1956 Ori 65., AIR 1956 Ori 65:

(ii) the discretion for examining witnesses on commission has to be exercised more liberally in favour of the Defendant but strictly if the application for that purpose is made by the Plaintiff. Reliance has been placed by the trial Court for this proposition also on Messrs Natabarlal sayashankar''s case (supra);

(iii) the demeanor of the attesting witnesses is one of the most important factors in the case of a disputed will, and, therefore, the Court should have the attesting withesses examined before itself.

(iv) the issue of commission to Nagpur would involve the contesting Defendant great expenditure: and

(v) the Defendant apprehends that it would not be safe for her to go to Nagpur where the Plaintiff may arrange to have her killed.

So far as the first two points are concerned, the trial Court appears to have completely misdirected itself In Union of India v. Messrs Natabarlal Jayashankar (supra) the Orissa High Court was dealing with a case where the Defendant (Union of India) wanted to examine its own employees on commission for which there was no justification. The Court treated the application as that for examining the Defendant itself on commission and observed that the privilege of permitting a party to examine himself or his witnesses (of the type involved in that case) was a matter for the judicial discretion of the Court trying the suit. It was in that very context that an observation was made drawing a distinction between a Plaintiff praying for witnesses oeing(sic) examined on commission and the Defendant making such a request. That case has, therefore, no relevance to the facts of the case in nand(sic). Moreover even while observing about the discretion of the Court it was made abundantly clear by the learned Judge of the Orissa High Court that what is essential is that the Court allowing evidence being taken on commission has to satisfy itself that the application has been made in good faith and not for the purpose of delay and embarrassment. This clearly indicates that according to the law laid down in Messrs Natabarlal jayasankar''s case (supra) an application which is made in good faith and not merely for the purpose of delaying the disposal of the suit or for causing embarrassment to the opposite party has to be normally allowed by the Court and cannot be rejected. In any case the distinction between a case where a party wants to get himself examined on commission and a case where independent essential witnesses not within the control of the party living beyond 200 miles are sought to be examined on commission must always be borne in mind.

So far as the demeanor of the witnesses is concerned it is well-known that cases in this part of the country are handled at the trial stage by several Subordinate Judges and it is indeed in a very rare and fortunate suit that the Subordinate Judge who records the entire evidence is able to decide the case himself. Moreover, it appears to me that a statutory right is conferred on a witness failing within the purview of Order 16 Rule 19 of the Code to have himself examined on commission and the mere salutary principle like the desirability of observing the demeanor of a witness in the witness-box by a Court must give way to such statutory provisions and cannot override them. If the consideration of the desirability of observing the demeanor of the witness before the Court were to prevail against the right of a party to examine an important witness of his own commission, the right conferred on the witness under Order 16 Rule 19 and on the party under Order 26 Rule 4 of the Code would stand completely negatives and become absolutely illusory. Even in Jaya Shankar Mills (Bansi) Ltd. v. Hazi Zakaria Hazi Ebrahim AIR 1962 A. P. 435., to which reference has been made by the learned Subordinate Judge in support of the proposition relating to the demeanor of the witness, it was clearly brought cut that the commission which was refused in that case was for the examination of the Defendant himself. The learned Judges clearly held in that case that inconvenience of a party cannot be a significant factor when the interests of justice warrant that he should come before the Court. Such observations relate only to a party to the suit and not to his witness. In A.R.P.R. Viswanathan Chety Vs. M.N.M. Somasundaram Chetty, ., the order of trial Court rejecting an application under Order 26 Rule 4 of the Code was revised and reversed by the High Court and it was held that the watching of the demeanor of the witness sought to be examined on commission was not a legally sufficient ground for dragging even the Defendant himself all the way from Rangoon where he was living.

Nor do I find any force in the argument that the Commission, to the issue of which the party and his witnesses arc entitled as of right could be declined merely because it would involve the opposite party an expenditure. This would be true of all the casts in which a commission is issued to a distant place. If this consideration were to prevail.

The argument about the Defendant not considering herself to be safe at Nagpur has not appealed to me at all. Ordinarily it would not be necessary for her in the case in hand to personally go to Nagpur as it is nobody''s case that she knows that witnesses or knows anything about them or that she was herself at Nagpur of the time of the execution of the will. In spite of this it is her light to be present before the commissioner if she desires. If she has any real risk she can seek protection of the police at Nagpur or make other suitable arrangement herself It appears to me that none of the grounds on which commission has been refused can hold water.

I cannot lose sight of the peculiar facts of this case. The will has been set up by the Plaintiff. The Defendant has denied its-execution. The Plaintiff is bound to produce the attesting witnesses of the will as witnesses. He would fail in the suit if he does not do so. He has made application for examining the witnesses at the earliest opportunity. It is not disputed that the witness resides at Nagpur. There is no allegation that the application of the Plaintiff is malafide or lacks bonafides. Plaintiff is out of possession. He has no interest in delaying the disposal of the suit. There is nothing on the record to show that the application has been made merely in order to cause any kind of embarrassment to the Defendant. There is distinction between an application under order 26 Rule 4 on the one hand and one under Order 26 Rules 5 on the other. Bona fide applications made well within time under order 26 Rule 4 are hardly ever declined. Greater discretion is, however, vested in Court in the matters of applications under Rule 5. After considering all the circumstances of the case 1 am of the view that the order of the learned trial Judge is not sustainable on any of the grounds by which it is sought to be supported.

Before parting with the case I must also observe that I have not been able to appreciate how the learned Subordinate Judge has directed the Plaintiff to produce his witnesses "at his own responsibility". That is a phrase which is sometimes used for a recalcitrant party who goes on delaying the disposal of the case on one pretext or the other, and is not able to produce witnesses summoned by it by getting frivolous reports on the processes issued to the witnesses. Even in such a case it is only when a party or its counsel, prays for an adjournment being granted to produce his evidence at its own responsibility that such a direction is given. If the learned Subordinate Judge declined to issue the commission, he was bound to issue processes for the witnesses. The witnesses would have been within their right to show that they cannot be compelled to appear in Court on account of the statutory safeguard granted to them by Order 16 Rule 19 of the Code.

For the foregoing reasons I allow this petition, set aside and reverse the judgment and order of the trial Court, grant the application of the Plaintiff under Order 26 Rule 4 of the Code for the examination of his two witnesses on commission at Nagpur, and direct him to file interrogatories for the examination of the witnesses in the trial Court within one month from today. Copy of the interrogatories-shall be served on the counsel for the Defendant-Respondents who may file cross interrogatories within two weeks of the service of the interrogatories on him A copy of the cross-interrogatories will be served on the counsel for the Plaintiff who may suggest questions in re-examination and any further interrogatories Nothing stated in this order will debar the trial Court from issuing an open commission if the trial court considers it necessary to do so, or if the Court finds that unnecessary delay is being caused in examining witnesses interrogatories Nor would this order stand in the way of the parties being represented by counsel before the Local Commissioner at Nagpur, and putting supplementary questions to the witnesses with the leave of the commissioner according to law. The costs of this revision petition shall abide the result of the suit. Parties are directed to appear before the trial Court on September 14, 1976.