Shaik Sattar Saheb and Others vs M. Banu Bee and Others

Syed Saadatulla Hussaini, J.—Heard both the Counsel.

The petitioner is the 2nd defendant in the suit which is filed for declaration of title and possession in respect of House property. The plaintiff has filed an application for appointment of Advocate-Commissioner to examine the Hand-Writing Expert as a witness who had earlier examined the disputed document and given his expert opinion (report) about the document.

It is submitted before me that the Court of Principal District Munsif is situated at Ananthapur and the Hand-Writing Expert who has to be examined as a witness, resides at Bangalore, Karnataka State. Though an objection was raised for appointment of Advocate-Commissioner by the petitioner-2nd defendant the Lower Court on consideration of facts has ordered for the appointment of Advocate-Commissioner to examine the Hand-Writing Expert at Bangalore, Karnataka State.

Aggrieved by the said order of the Lower Court, dated 25-9-1995 passed in LA. 1380 of 1995 in O.S.95 of 1986, he has preferred this revision before this Court.

The submission of Mr. O. Manohar Reddy, the learned Counsel for the petitioner is that there is legal infirmity in the order passed by the Lower Court appointing an Advocate-Commissioner to examine the Hand-Writing expert at Bangalore, Karnataka State for it is contrary to proviso to Rule 4 of Order 26 of the Civil Procedure Code. As such, it is not sustainable in law and the Lower Court has acted illegally in exercise of its jurisdiction. He also submits that the ''language'' used in Rule 19 of Order 16 of the Code makes it abundantly clear that when a witness resides within a distance of 500 K.Ms. from the place where the Court is housed and where public conveyance is available, the Court shall refrain to issue a Commission to examine the witness of such place. But if the witness is to be examined by any party in the suit and the witness resides beyond the distance of 500 K.Ms. from the Court, the Court has no option but to issue a Commission for examining of such witness.

On the other hand, Mr. Suryanarayana, the learned Counsel for the respondents, relying on Rule 19 of Order 16 CPC, submits that as the Hand-Writing Expert is residing outside the local limits of the jurisdiction of the Court, at Bangalore, Karnataka State, the Court is competent to examine the witness on Commission and there is no illegality in the orders of the Trial Court directing the examination of the Hand-Writing Expert who is residing in Bangalore, Karnataka State by appointing a Commissioner.

In order to appreciate the contentions of the Counsel for both sides, it is necessary to look at the provisions of Order 26 Rule 4 C.P.C., and Order 16 Rule 19 C.P.C., which are as follows:

Order 26 Rule 4 C.P.C..

PERSONS FOR WHOSE EXAMINATION COMMISSION MAY ISSUE:

4 (1) Any Court may in any suit issue a Commission (for examination on interrogatories or otherwise 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 Govt. who cannot, in the opinion of the Court, attend without detriment to the "public service;

Provided that where, under Rule 19 of Order XVI, a person cannot be ordered to attend a Court in person, a Commission shall be issued for his examination if his evidence is considered necessary in the interest of justice:

Order 16 Rule 19 C.P.C.

No witness to be ordered to attend in person unless resident within certain limits.

No one shall be ordered to attend in person to give evidence unless he resides-

(a) within the local limits of the Court''s ordinary original jurisdiction or

(b) without such limits but at a place less than one hundred or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than five hundred kilometres distance from the Court-house:"

From a perusal of the above two provisions, it is clear that Order 26 Rule 4 C.P.C. is controlled by Proviso (to Rule 4) under (sic. and) Rule 19 of Order 16 C.P.C. On a plain reading of Rule 19 of Order 16 C.P.C, it is clear that a person residing within the local limits of the Court''s ordinary original jurisdiction, shall be ordered to attend the Court in person to give evidence, but where a person resides at a place less than one hundred or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than five hundred kilometres distance from the Court-house, he shall be ordered to attend in person to give evidence. It clearly means that if a witness resides at a place less than one hundred or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than five hundred kilometres distance from the Court house, the Court shall order such witness to attend to the Court to give evidence. But if the witness resides beyond the distance of 500 kilometres from the location of the Court, the Court has no option but to examine such witness on Commission only.

Similar is the view taken in the decision reported in Lachhmi Devi v. Chandrakala though before the Amendment Act of 1976 wherein it is held thus:

"These words do not mean that the distance between the Court-house and the place of residence of a witness must be five-sixths of two hundred miles. Their implication is that if the place of residence is less than two hundred miles from the Court-house and there is a railway, steamer or other established public conveyance for five-sixths of this distance, the witness can be ordered to attend in person."

In this case, it is not disputed by either of the Counsel that the distance from the location of the Principal District Munsif Court, Ananthapur to Bangalore, Karnataka State where the witness resides, is less than 200 kilometres. In such circumstances, no Commission can be issued for examination of the witness under Order 26 Rule 4 of the Civil Procedure Code. As such, the order passed by the Lower Court in LA. 1380/1995, dated 25-9-1995, is illegal and not sustainable in law as it has acted exercising its jurisdiction illegally. I, therefore, set aside the order passed in LA. 1380/95, dated 25-9-1995 by the Principal District Muasif, Ananthapur.

In the result, the C.R.P. is, allowed. No costs.