FILMISTAN PRIVATE LTD Vs. BHAGWANDAS SANTPRAKASH

JUDGEMENT

(1.) This appeal by special leave is directed against the order issued by Vimadalal J. in S. Suit No. 109 of 1962 on the original Side of the High Court of Judicature at Bombay directing the issue of a letter of request to our ambassador at Kabul to examine certain witnesses who are residing in Kabul on commission.

(2.) Admittedly the witnesses sought to be examined at Kabul are relevant witnesses. All of them are living outside the jurisdiction of the Court and hence they are not amenable to the process of the Court. It was said on behalf of the appellant that one of the witnesses sought to be examined is an agent of the 1st defendant and therefore that defendant could have produced him in Court for examination. As regards the other witnesses, it was said that the facts that they were expected to depose could have been established by other evidence. We have no doubt that these facts must have been considered by the learned trial Judge. The order under appeal is essentially a discretionary order. We do not think that a case is made out for interfering with the discretion of the learned trial Judge. The fact that the witnesses examined on commission cannot be effectively cross-examined or their examination will entail heavy costs are not sufficient circumstances to interfere with the discretion of the learned trial Judge.

(3.) It was urged on behalf of the appellant that the Commissioner cannot compel the witnesses to appear before him for examination and therefore the attempt to examine them is a futile one. We think this consideration is irrelevant at this stage. We do not know whether the witnesses in question are willing to be examined by the Commissioner or not. It is for the defendant to produce them before the Commissioner, if he wants them to be examined.