Surana Industries Ltd. vs Surindra Engineering and Trading Co.

M.M. Kumar, J.—This revision filed u/s 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenges the order dated 28.3.2002 passed by the Additional Civil Judge (Sr. Division), Khanna dismissing the application of the defendant-petitioner seeking permission of the Court to examine the witnesses at Chennai (Madras) on the ground that distance between Khanna and Chennai is more than 500 kilometres and that there has been no air link between Khanna and Chennai. On the basis of these facts, a prayer was made that all the witnesses of the defendant-petitioner be examined on commission or through interrogatories. The trial Court dismissed the application by reaching the conclusion that the same has been moved in order to delay the proceedings because on an earlier occasion Shri Gautam Surana, Chairman of the defendant-petitioner has appeared as DW-1 when the order had been recorded on preliminary issue with regard to jurisdiction. Another reason given by the Civil Judge is that the plaintiff-respondent would be deprieved of cross examining the witnesses if their statements are recorded on commission and there is direct link of transport through air because Sahnewal which is about 30 kilometres from Khanna Courts has an aerodrome and that road transport facility is available from Sahnewal to Khanna.

Brief facts of the case which are necessary for decision of the controversy raised in this petition are that plaintiff-respondent filed Civil Suit No.723/RBT/889/ 29.9.1995/15.6.1996 for recovery of Rs. 12,41,709/- against the defendant-petitioner. Defendant-petitioner raised some preliminary objections with regard to the territorial jurisdiction of the civil Courts at Khanna and it was during the decision of the preliminary issue with regard to jurisdiction when Mr. Gautam Surana, Chairman of the defendant-company had appeared as DW-1. Eventually the issue with regard to jurisdiction was decided in favour of the plaintiff-respondent who concluded the same in December, 2001. On 8.12.2001, defendant-petitioner moved an application for examination of the witnesses through commission. The application was contested and the trial Court dismissed the same by recording the following order:-

".....It is stated that since all the witnesses of defendants are based at Chennai and distance between Khanna and Chennai is more than 500 Kms. as such under the law, witnesses to be produced, have to be examined by commission or through interrogatories. There is no direct air service from Chennai to Khanna. It is thus prayed that application be allowed accordingly. Perusal of file shows that earlier Sh. Gautam Surana, Chairman of defendant-company had appeared as DW-1 while evidence was recorded on the preliminary issue regarding jurisdiction. When Sh. Gautam Surana had earlier appeared in the Court, it is not understood that why he as well as other witnesses cannot appear again in this case. If the commission is sent to Chennai to record statements of witnesses of the defendants, plaintiff would be deprieved of his right to cross-examine the witnesses. Apart from this, Chennai and Khanna has link with transport through air because Sahnewal which is about 30 kilometer away from Khanna Courts has a aerodrum (sic....?) and there is provision of transportation by way of Air. Consequently, present application filed by defendant is without merits, appears to have been filed just to prolong the proceedings of this case. Same is, therefore, dismissed.

Now to come upon 20.4.2002 for evidence of defendants at own responsibility."

I have heard Mr. R.S. Bajaj, learned counsel for the defendant-petitioner and have perused the impugned order. Learned counsel has argued that in accordance with the provisions of Order XVI Rule 19 of the Code, no witness could be ordered to attend the Court in person, unless he/she is residing within the jurisdiction of the Court or at a place situated at less than 500 kilometres distance from the Courts. In support of his submission, the learned counsel had placed reliance on two judgments of this Court in the cases of Gurpal Kaur v. Charan Kaur and Ors. 1985 P.L.J. 610 and Shri Kewal Vs. Smt. Swaran Kaur, .

1 have thoughtfully considered the submissions made by the learned counsel. It is appropriate to make a reference to the provisions of Order XVI Rule 19 and Order XXVI Rules 1 and 4 of the Code which reads as under:-

ORDER XVI SUMMONING AND ATTENDANCE OF WITNESSES

1 to 18. xx xx xx xx

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-sixth of the distance between the place where he resides and the place where the Courts is situate) less than [five hundred kilometers] distance from the court house:

Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person.]."

ORDER XXVI COMMISSIONS Commissions to examine witnesses

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:

[Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.

Explanation.- The Court may, for the purpose of this rule, accept certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.

2 to 3. xx xx xx xx 4. Persons for whose examination commission may issue.-(1) Any Court may in any suit issue a commission [for the 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 Government 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:

Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.]

(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.

(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court."

A perusal of Order XVI Rule 19 and Order XXVI Rules 1 and 4 of the Code reveals that the provisions of two orders are entirely different in their nature and content. Under Order XVI Rule 19 of the Code, it is mandatory that a witness should not be ordered to attend in person subject to the condition specified, whereas in Order XXVI Rules I and 4 of the Code, the issuance of commission to examine witnesses has been left completely to the discretion of the Court. Therefore, submission made by the learned counsel has to be examined in the light of the provisions of Order XXVI Rule 19 and the discretion conferred on the trial Court by Order XXVI Rules 1 and 4 of the Code. A vital proviso carving out an exception has been inserted in Order XVI Rule 19 of the Code by the amendment added in 1976. According to the proviso, where the transport facility by air is available between the place where the witness resides and the place where the Court is situated, then he can be ordered to attend in person. The object of the proviso appears to be to procure the attendance of witnesses as far as possible to appear before the Court to satisfy the requirement of ordinary procedure which is followed in every case. It has ramblings of best evidence rule. Another reason which has prompted me to take this view is that the provisions of Order XVI Rule 19 of the Code would not apply to the parties to the suit. A perusal of the application filed by the defendant-petitioner before the trial Court shows that Sarvshri Gautamraj Surana, former Chairman, M. Ramasubramanian, Director (Operations) and V. Aranganathan, Senior Vice President of defendant-company are virtually defendants and as such parties to the proceedings.

In Indrajeet Roy Vs. Bank of Baroda, , it has been held that the provisions of Order XVI Rule 19 of the Code would not apply to the parties to the suit. The observations of Orissa High Court read as under:-

"Order 16, Rule 19, C.P.C. provides for exemption of witness in certain circumstances stated therein to attend the Court in person to give evidence. Even if, defendant would have satisfied the said circumstances, he could not have been exempted from appearing in person since the said provision is not applicable to parties to a suit. See ILR (1979) Cal 38, Anil Kumar Das v. Orissa Cements ltd. To this extent objection of plaintiff is sustainable. However, Court has the discretion to examine any person on commission as provided in Order 26, Rule 4. C.P.C. The term any person includes a party also. Therefore, Court ought not to refuse to exercise its discretion in just and deserving cases merely on the ground that the person sought to be examined on commission is a party to the suit."

The provisions of Order XXVI Rules 1 and 4 of the Code would further disclose that no distinction has been made by these provisions between a witness and a party. Therefore, it has been left to the discretion of the Court and it has not been made mandatory to examine the witnesses even when they are party to the suit. Therefore, the mandatory prohibition engrafted by Order XVI Rule 19 of the Code is only in respect of the witnesses and not in respect of the parties to the suit. In so far as the parties to the suit are concerned, when they are to appear as witnesses, it has been left to the discretion of the trial Court. The observations of Orissa High Court in this regard in Indrajeet Roy''s case (supra) read as under:-

"Whether the witness sought to be examined on commission is a party or not, for'' exercising the discretion, Court must form an opinion that any of the guidelines of Order 26, Rule 4, C.P.C. is satisfied. Since the opinion is a judicial opinion, it is required to be supported by reasons although not specifically provided for in Rule 4, In the present case, defendant seeks exercise of discretion by Court on account of satisfaction of the requirement of Order 26, Rule 4 (1) (c), C.P.C. which provides that a Court may in any suit issue a commission for examination of the person in the service of Government who cannot in the opinion of the Court, attend without detriment to public service. While exercising discretion Court is to make a distinction between a party and a person who is not a party since under Order 18, Rule 3A, C.P.C. normal rule is that a party who wishes to appear as a witness shall appear first before any other witness is examined. Between a plaintiff and defendant Court will not regard the case of the defendant with the same strictness as the case of the plaintiff. See (1956)22 Cut.L.T. 72: AIR 1956 Ori. 65), The Union of India v. Natbarlal Jayshankar. Reason for the same is that plaintiff has chosen his own forum. Defendant in making claim for set off and counter claim does not choose his own forum and for the purpose of Order 26, Rule 4, C.P.C., he cannot be treated as plaintiff. Persuasive precedent reported in Shrimaj Jagadguru Mummadi Shri Neelakantha Pattadarya Mahaswamygalu Vs. Shankar Shivacharyaswamy Gurunanjundaswamy Neelakanthamath, need not be considered in this respect which was considering the case of plaintiff. ILR(1990) I Cut 141: AIR 1980 Ori 67), Manoharlal Arora v. Atma Prakash Arora has not decided this question although the same was one of the questions to be decided as defendant No. 3(a) in that case prayed to be examined on commission. Therefore, objection of plaintiff to this extent is not sustainable."

It is further pertinent to point out that in respect of the preliminary objection regarding jurisdiction of the trial Court at Khanna, these very persons had appeared as witnesses. It ill behoves now for them to say that they would be unable to appear and they may be examined on commission. Therefore, the revisions petition is liable to be dismissed.

Learned counsel for the defendant-petitioner has placed reliance on two judgments of this Court in Gurpal Kaur''s case and Kewal''s case (supra). In Kewal''s case (supra), it has been held that appointment of commission is left to the discretion of the Court and is an enabling provision under Order XXVI Rule 4 of the Code. However in Gurpal Kaur''s case (supra), the reason given for rejection of the application for examination of witnesses on commission were criticised by this Court observing that the objection of watching demeanor of witnesses was not sustainable. But then that is a case of examination of witnesses not of the parties. Therefore, the aforementioned judgments do not in any manner advance the case of the defendant-petitioner.

For the reasons stated above, this revision petition fails and is dismissed.