Yashoda Devi vs Prakash Bhelotia

A.K.Banerji, J.—This revision is directed against the order, dated 1721993 passed by the VIIth Additional District Judge, Gorakhpur by which the said Court dropped the proceedings for Commission for examining the witness on interrogatories and directed the defendant to produce his witnesses in and directed the defendant to produce his witnesses in Court.

Brief facts are that the landlordOpp. party filed a S. C. C. Suit No. 7 of 1983 against the defendantapplicant for recovery of arrears of rent and ejectment. In the written statement the defendant denied the service of notice for terminating the tenancy on the ground that the said notice could not be served on the defendant by the refusal as she had gone to Bagha, district West Champaran, Bihar where she was under the treatment of Dr. M. Rizwan between the period 131983 to 2331983. As evidence in support her case the defendant filed three papers which were medical certificates given by Dr. M. Rizwan. At the evidence stage an application (paper No. 209/C) was filed under Order XXVI, Rule 4, C.P.C. for examining" Dr. M. Rizwan at Begha, West Champaran on commission by serving interrogatories This application was opposed. However, the court below vide order dated 2381990 allowed the said application but very surprisingly misconstrued the application and passed the order for examination of the defendant No. 1 on Commission instead of defendant''s witness, Dr. Rizwan. It appears that despites this glaring mistake in the order none of the parties sought to get the same corrected. On the contrary the defendantapplicant deposited the necessary expenses, as ordered by the Court. Though the District Judge, Champaran fixed a date for recording the evidence, the Commission could not be executed for one reason or the other for more than two years, and ultimately on 1311993, the trial Court passed an order that a reminder be sent to the District Judge, West Champaran for completing the Commission and forwarding the report to the Court by 1721993 otherwise the Court will proceed with the matter. On 1721993 which was the date fixed, the defendant did not appear and the trial court passed the impugned order dropping the proceedings for Commission and directed the defendant to produce his witnesses in the Court on 631993. The defendant did not make any effort to get this ex parte order recalled but filed the present revision before this Court by challenging the impugned ex parte order dated 1721993.

I have heard the learned counsel for the parties and have perused the record of this revision and the same is being decided finally with the consent of the learned counsels at the admission stage.

The learned counsel for the defendantapplicant has strongly contended that once the Court had passed an order for examination of a witness on Commission it had no jurisdiction to recall the said order. Besides, the defendantapplicant had deposited the cost for Commission and delay in the execution of the Commission was not on account of the defendantapplicant. The court, therefore, exceeded its jurisdiction in dropping the proceedings for examination of the witness on Commission and thereby prejudicing the case of the defendant. I am, however, unable to agree. As already noticed above, the order dated 2381990 by which the Court had allowed the defendant''s application (paper No. 209/C) suffered from an apparent error, inasmuch as the defendantapplicant had sought the examination of Dr. M. Rizwan on Commission on the ground that the said witness was living beyond the jurisdiction of the Court and was unable to come to Gorakhpur to give evidence The court, however, misconstrued the said fact and proceeded as if the defendantapplicant wanted to examine herself as DW 1 on commission as she was lying ill at Bagha, district West Champaran, Bihar. The order of allowing the proceeding for commission was, therefore, based upon an absolutely wrong premise and therefore, all the subsequent proceedings for examination on com mission would be rendered nugatory. Under Order XXVI, Rule 4, G. P. C. the court could issue a commission for examination of a person on interrogatories or otherwise provided the court for reasons to be recorded thought it necessary so to do. Similarly, Rule 19 of Order XVI lays down that where 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. There is a further proviso which lays down 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. From the aforesaid provisions, it is amply clear that the court will only exercise its discretion to examine a person on commission or by interrogatories provided for reasons recorded if considers it necessary in the facts of the said case to do so. As noticed in the present case at hand that the trial court had on a complete misunderstanding of the facts of the case passed the order dated 2381990 for examining the defendant No. 1 on commission instead of the Doctor for whose examination the prayer was made in the application (Paper No. 209/C). The reason recorded was therefore not sustainable and the proceeding consequent upon this order for issuing commission was, therefore, not legally sustainable.

The learned counsel for the defendantapplicant has however, contended that the letter issued from the office of the Court at Gorakhpur to the District Judge, Champaran mentioned the examination of the witness Dr. M. Rizwan and therefore, no prejudice is caused to the plaintiff. I cannot agree. The letter sent to the District Judge, West Champaran is only a ministerial act and could not take the form of the order of the Court. The commission was only issued on the order dated 2381990 which speaks about the examination of the defendant No. 1 and not of Dr. M. Rizwan. The letter, therefore, cannot modify supersede or correct the order dated 2381990.

So far as the submission of the learned counsel that the court having once passed an order for examination of a person on commission is not empowered to recall the said order, the same to my mind is fallacious. If the Court has the power conferred by the statute to issue an order for examination on commission it can very well vary or rescind the said order on the principle laid down under Section 21 of the General Clauses Act. 1 am supported in my view by a decision of the Delhi High Court in case of Narain Das v. Koran Chandra reported in AIR 1968 Delhi 226 wherein an earlier order for examination of some witnesses on commission was rescinded and similar argument like in the present case, was repelled. It was held that the earlier order was a procedural one and no Quality can be said to have attached to it. Besides if circumstances subsequent to the passing of the said order require that a variation or cancellation is necessary. There can be no legal objection bar to the variation or cancellation of the said order by a fresh order. In the said case the court had relied upon the observations made by a Division Bench of the Rangoon High Court in the case of Chettyar v. MaungBa Chit, reported in AIR 1930 Rangoon 315 which reads as follows:

"I do not think that it can be held that a Judge has not the power to alter an order of his predecessor with regard to the issue of a commission. Such an order is not a final one and it relates more to the routine of the case than to the merits of the case. There can be no possible doubt that a Judge can alter an order passed by his predecessor with regard to the framing of issues, an order for examination of witnesses, adjournments and so forth, and, therefore, I see no reason why he should not alter an order passed by his predecessor with regard to the issue or nonissue of a commission."

Respectfully agreeing with the view expressed by the Delhi High Court and the Rangoon High Court in the aforesaid cases I hold that it was open to the Court to cancel the earlier order and to drop proceedings for examination on commission.

Learned counsel for the applicant has contended that the order dated 2381990 has not been challenged by either of the parties and therefore, it should be allowed to stand. As already noticed above, the said order was passed upon an absolutely wrong premise and therefore, the reasons given by the court for exercising its discretion was not sustainable either in fact or in law. That apart it is well settled that this court has jurisdiction under Article 227 of the Constitution to correct wrong orders passed by the court if required in the interest of justice (See Aidal Karan Singh. AIR 1957 All 414 (FB). I, therefore, see no force in

Learned counsel for the defendantapplicant has placed reliance on following reported decisions m support of his arguments ;

(1) Lachhmi Devi v. Chandrakala Sarogi, AIR 1973 Patna 153.

(2) Mrs. Tara Swarup v. M/s. Piara Singh Gurmait Singh, Air 1985 NOC 187 (P & H).

(3) Manohar Lal Arora v. Atma Prakash Arora, AIR 1983 Ori. 57.

I have perused the aforesaid decisions and find that none of them are of any help to the applicant. On the contrary the decisions of Orissa High Court in the case of Manohar Lal Arora (supra) supports the view taken by this court when it lays down that the power to issue commission is discretionary and subject to the limitation prescribed under the Rule and unless the Court is satisfied that there is a compelling necessity to examine such witness on commission should not issue. In the present case there is no findings by the court below that the evidence of Dr. M. Rizwan was necessary to be recorded in this case.

Apart from what has been stated above, it is noteworthy that the suit for ejectment and arrear of rent was filed in the year 1983 before the Small Causes Court. More than 12 years have since elapased and the evidence has not been recorded. The proceeding for examination of a witness on commission remained pending for over 21/2 years and the same could not be recorded, In the circumstances the question whether the defendant was to be blamed for the delay was not material. The court below was fully justified in the facts and circumstances of the case in dropping the proceedings for examination on commission. The proviso (b) to sub section (1) of Sec tion 115, C. P. C. lays down that the High Court shall not under this section vary or reverse any order except where the same if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made. In the facts of the present case court below has permitted the defendant to produce his witnesses in support of his case. Besides, even if the Doctor is not examined for proving the medical certificate, it is ''open to the defendant to adduce any other evidence in support of her case and for the purpose of rebutting the case of the plaintiff with regard to the service of notice. In my view, therefore, the defendant was not prejudiced in any manner and if the order passed by the court below is allowed to stand the same will neither occasion a failure of justice nor ease any injury to the defendant. This is not a fit case where this Court should diction under Section 115, C. P. C.

The revision is devoid of merits and it is, therefore, dismissed Cost on parties.

Revision dismissed.