Shri Kewal vs Smt. Swaran Kaur

J.V. Gupta, J.—This petition is directed against the order of the trial court dated 23rd May 1989 whereby on the application made by the plaintiff for appointment of a commission for recording statement of seven witnesses at; Delhi was allowed.

2 According to the trial court, it was difficult for the plaintiff to produce so many witnesses from such a long distance and, it would take a very long time for conducting the plaintiffs evidence in case the lcoal commissioner was not appointed for the purpose. Consequently Sh. Mohan Lal Advocate was appointed the local commissioner for re condign the statements of the witness mentioned in the application

Learned counsel for the defendant petitioner; submitted that in Order 16 Rule 19,Code of Civil procedure, there is an a amendment by this court by virtue of which it has been added "Provided that, any court in the State of Punjab may require the personal attendance of witness residing in the Punjab or Delhi State. "This amendment dated 4th March, 1955, when Delhi was under , the jurisdiction this court. Thus, argued the learned counsel in view of the provisions of O. 16, R, 19, CPC the distance between the court at Phillaur and the place where the witnesses reside at Delhi being less than 500 Kms they could be , ordered to attend in person to give evidence. That being so, the impugened order was liable to be set aside.

On the other hand learned counsel for the plaintiff/respondent submitted that no revision petition is maintainable against such an order as it can-" not be said to be a, decided case. In support of this contention, he referred to Smt. Harvinder Kour v. Godha Ram A. I. R.-1979 P & h. 76. He further submitted that if O. 16 R 19, CPC is read with O. 26, R. 4, CPC. the Court had the to issue commission for examination of the witnesses Moreover, argued the learned counsel O. 16 R. 19, CPC is an enabling provision and does not debar the jurisdiction, of the trial Court to appoint a local Commissioner even if the requirements of the said provision are fulfilled. In support of this contention she referred to Pritam Singh v. Shmt. Vidya (1976) 78 P. L. R. 877. Gurpal Kaur v. Charan Kaur 1985 P. L.R. 610. and Union of India v. M/S Mohar Singh Sarwan Singh (1989-1) 95 P. L. R. 308.

After hearing the learned counsel for the parties, I do not find any merit in this petition There is hardly any justification for interference u/s 115, CPC with the impugned order It was a matter of discretion with the trial court Which has been exercised judicially. The said provisions of O. 16 R. 19 CPC read with O. 26 R. 4, are enabling provisions and do not debar the jurisdiction of the trial court to ... appoint a commission otherwise. Consequently, this petition fails and is dismissed with costs.

However, since the witnesses are to be examined at Delhi by the plaintiff, the trial court shall fix some amount for payment to the counsel for the defendant if any, who may be going to examine the witnesses at Delhi.

Since farther proceedings were stayed by this court at the time of motion hearing, the parties are directed to appear in the trial court on 17th October, 1989.