Sri Ram vs Ashwani Kumar and Others

Adarsh Sein Anand, J.—This revision petition is directed against the order of learned Sub-Judge, Jammu, dated May 6, 1977, by which he

allowed an application of the Plaintiffs - (Respondents herein) for the examination of their witnesses namely Arjan Nath Trakoo, petition-writer,

Srinagar, Ali Sheikh, Lambardar of village Nunnar Tehsil Gandarbal and the patwari Nunnar Circle Tehsil Gandarbal on commission.

From a perusal of the record it transpires that the Plaintiffs have filed a suit for declaration to the effect that the sale deed dated Jan. 14, 1974,

and registered on the same day, executed by Defendant No. 3 in favour of Defendant No. 1 was null and void, and inoperative against the rights of

the Plaintiffs. During the course of trial, some evidence was recorded by the learned Sub-Judge, Jammu, when on April 27, 1977, an application

was moved before the learned trial court for the examination of the above-named three, witnesses on commission. On notice of that application

being given to the Defendants, they filed their objections to the application and submitted that the witnesses be directed to appear in court and be

not examined on commission. The objections of the Defendants did not find favour with the learned trial court. Aggrieved, with the order of the

learned trial court the Defendants have come up to this Court by means of this revision petition.

A preliminary objection has been taken by Mr. Tak appearing for the Respondents to the effect that no revision lies against an interlocutory

order which does not decide the matter in controversy between the parties to the litigation.

Mr. Dhanpat Rai, learned Counsel for the Petitioner, has in reply submitted that the trial court, while granting the application of the Plaintiffs for

the examination of three witnesses on commission, has acted with material irregularity and has committed an error in the exercise of its jurisdiction.

It is urged that since the Defendants cannot re-agitate the grievance with regard to the grant of commission in either by appeal or otherwise, the

interlocutory order of the learned trial court would amount to a 'case decided' and be revisable u/s 115 CPC Reliance has been placed by Major

S.S. Khanna Vs. Brig. F.J. Dillon, wherein their Lordships of the Supreme Court have observed that to interpret the expression ""case"" as an entire

proceedings only and not a part of proceedings would be to impose restriction upon the exercise of powers of superintendence which the

revisional jurisdiction confers on the High Courts. Reliance has also been placed on Suraj Lal Bal Krishna Das Vs. Padrauna Raj Krishna Sugar

Works Ltd. and Another, . In that case a learned single Judge of the Allahabad High Court held (at p. 372):

I have come to the conclusion ... that the phrase 'case decided' had a wide meaning and that its meaning was not co-extensive with ""suit decided.

It is urged that in the light of these two authoritative decisions, the interlocutory order passed by the learned trial court would amount to a ""case

decided"" and the revisional jurisdiction of this Court u/s 115 CPC can be invoked by the aggrieved party.

I am afraid I cannot agree with the argument of Mr. Tak and give a narrow and limited meaning to the expression ""case decided"". In Major S.S.

Khanna Vs. Brig. F.J. Dillon, their Lordships of the Supreme Court have opined that the meaning of the expression ""case decided"" must be sought

in the nature of jurisdiction conferred by Section 115 of the CPC and the purpose for which the High Courts were invested with the said

jurisdiction.

The jurisdiction conferred by Section 115 of the CPC on the High Court is a supervisory jurisdiction and has been conferred on the High Courts to

rectify errors committed by the subordinate courts in the exercise of their jurisdiction and the like matters. Their Lordships in the aforesaid authority

observed that the expression ""case"" also includes civil proceedings other than suits and is not restricted by anything contained in the section ""to the

entirety of the proceedings in the civil court."" Whether a particular order amounts to a ""case decided"" or not, would depend upon the facts and

circumstances of each case and it is neither desirable nor possible to lay down a general formula as to when an interlocutory order may amount to

a ""case decided."" One such instance when an interlocutory order can be said to amount to a ""case"" decided would be when the controversy settled

by the interlocutory order is such that it cannot be reagitated either in appeal against the final order or otherwise. In the instant case the grievance of

the Petitioner against the grant of commission cannot be reagitated by the Petitioner at any stage once the evidence is recorded on commission, it

will be an accomplished fact and the mischief cannot be undone subsequently. In this view of the matter, I am of the opinion that the interlocutory

order dated May 6, 1977, in the instant case amounts to a ""case decided"" and is revisable u/s 115 CPC The preliminary objection raised by Mr.

Tak is as such overruled.

Mr. Dhanpal Rai has then argued that the reasons given by the learned Sub-Judge, Jammu, for allowing the application are fallacious. It is urged

that the learned Sub Judge appears to have been influenced only by the fact that it would be expensive for the Plaintiffs to bring the witnesses to

Jammu, and the other reason that the trial would be delayed if the witnesses are called to Jammu, is not based on facts on record.

Before proceeding to examine the argument of Mr. Dhanpat Rai it would be useful to reproduce the relevant provisions of the CPC Order 16

Rule 19 CPC provides:

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 fifty or (where there is railway 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 two hundred miles distance from the court-

house.

Order XXVI Rule 1 CPC provides:

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 attending the Court or who is from sickness or infirmity unable to attend it.

O. XXVI, Rule 4, CPC provides:

Any Court may in any suit issue a commission for the examination 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 civil or military officer of the Government who cannot, in the opinion of the Court, attend without detriment to the public service.

A perusal of the aforesaid provisions shows that it is within the discretion of a trial court to grant commission for the examination of witnesses

upon the conditions contained in Order XXVI Rule 1 and Order XXVI Rule 4 are satisfied. The discretion by the court has to be exercised

judicially on the trial Judge being satisfied that the commission should be issued. From the perusal of the order of the learned trial Judge, the only

grounds which appear to have led to his satisfaction for the grant of the application of the Plaintiffs were that the examination of witnesses at Jammu

would cause undue expense to the Plaintiffs and would also delay the trial of the suit. Both these reasons are not by themselves sufficient for the

exercise of the discretion, either under Order XXVI Rule 1 or Order XXVI Rule 4 Code of Civil Procedure. The normal rule of procedure is that

for recording the evidence of the witnesses, they should be called to appear in court and give evidence. Exceptions have been provided to the

general rule under Order XXVI, Rules 1 and 4 and Order XVI Rule 19 CPC When a commission is asked for, the court is under an obligation to

record a definite finding and come to a conclusion that sufficient reasons exist for the grant of the commission and the reasons must be such which

can stand scrutiny by the higher courts and the reasons should be such as are contemplated either under Order XXVI or Order XVI and the like.

That the producing of witnesses in the court would prove expensive for the party, is not any of the reasons specified or contemplated by the

aforesaid provisions. It is argued by Mr. Tak that under Order XXVI Rule 4 sub-Rule (1)(a) the court has a duty to issue commission to witnesses

beyond the local limits of the court.

The court indeed has a discretion to grant commission but the discretion has to be exercised judicially and not whimsically and it has to be

exercised in aid of justice and not only for the benefit of a party to litigation. Unless covered by the specific provisions of the Code e.g. when a

witness is exempt to appear in court or is from sickness or infirmity unable to appear in court or the like, commission should not be issued on the

mere asking and the court should not issue commissions unless a very strong case is made out. The word 'may' in Rules 1 and 4 of Order XXVI

means that the court has the 'discretion' to issue the commission and not that it is 'duty' bound to issue the commission whenever asked for. The

mere fact that it may prove expensive for Plaintiffs to produce the witnesses at Jammu, is hardly any justification for the departure from the normal

rule to insist upon the production of the witnesses in court. There is also nothing on the record to show that any attempt had been made to procure

these witnesses and that their production was causing delay in the disposal of the suit. The reason that examining of the witnesses in court would

cause delay, therefore, appears to me to be only imaginary and not based on any material on the record.

I also do not find any force in the argument of Mr. Tak that since the witnesses belong to village Nunnar, Tehsil Ganderbal, Srinagar, and

were, as such, outside the 'local limits of the courts' at Jammu, the commission was rightly granted.

The commissions are granted, as of right, in the case of witnesses residing 'beyond' the limits fixed under Order XVI Rule 19 CPC but if a

witness resides 'within' the limits prescribed by Order XVI Rule 19 CPC though, outside the local limits of the jurisdiction of the court, the grant of

commission becomes discretionary, Order XVI Rule 19 CPC does not take away the discretionary powers given under Order XXVI Rule 4

Code of Civil Procedure. In the instant case, the Plaintiffs had not, even asserted in their application for the grant of commission let alone

satisfactorily established that the witnesses were residing beyond the limits fixed under Order XVI Rule 19 Code of Civil Procedure. There was,

thus, no basis for the trial court to issue the commission as of right, under Order XVI Rule 19 Code of Civil Procedure. The trial court could,

therefore, act only under Order XXVI Rule 4(1)(a) Code of Civil Procedure. it is in fact conceded that the court issued the commission under

Order XXVI Rule 4 CPC and as noticed above the court was not justified to grant the commission under 'O. XXVI Rule 4 CPC on the facts and

circumstances of this case.

In Megh Mal Ghosh v. Indu Bh. Ghosh AIR 1977 NOG 236 (Cal) a Division Bench of the Calcutta High Court opined that where the trial

court allowed an application under Order XXVI Rule 1 CPC for the examination of witnesses on commission basing itself on an inadmissible

medical certificate, the trial court had acted illegally and there had been an illegal exercise of jurisdiction by the trial court. Warranting interference

u/s 115 CPC the revision petition filed against the trial court's order was, as such, allowed by the Calcutta High Court.

Considering, the totality of the circumstances of the case and a perusal of the record I am satisfied that the discretion exercised by the trial

court has not been exercised either properly or judicially and the trial court has acted with material illegality and irregularity in the exercise of its

jurisdiction. The revision petition is accordingly allowed and the order of the learned Sub Judge dated May 6, 1977, is hereby set aside.

The trial court is directed to summon the witnesses, if so desired by the Plaintiffs, for an early date and dispose of the case expeditiously. The

parties through their learned Counsel are directed to appear before the trial court on Jan. 4, 1978.