B S SURI Vs. L N DASS

JUDGEMENT

(1.) This is a petition under Article 227 of Constitution against the order of Sub-Judge dated 10th April, 1974 whereby the court had directed that the witness Shri Radha Raman, Chief Execute e Councilor be examined on commission in suit which is pending before it. The suit was filed in 1968 and the plaintiff concluded his evidence in 1970. Subsequently, the case was being adjourned for the evidence of the defendants. In the list of witnesses was included the name of Shri Radha Raman. Even summons were issued to him but he did not appear through served and thus could not be examined at the time. Shri Radha Raman was not the Chief executive Councillor of the Metropolitan Council, Delhi, at that time. Subsequently, it appears that a number of time the summons were issued to Shri Radha Raman but he did not appear in pusuance of them. The last time he was served on 11th March, 1973, but again he did not appear in the Court. Even a notice under Order 16 Rule 12 was issued to him. By that time, it appears Shri Radha Raman had been appointed as Chief Executive Councillor of Metropolitan Council, Delhi. The trial court brought this matter to the notice of the District Judge and requested him to write to the witness so that he could appear in court. The District Judge thereupon wrote to Shri Radha Raman on 16th March, 1974, requesting him that he should attend the court on 28th March 1974, whichwas apparently the date fixed for his evidence. Shri Radha Raman, hower, in reply wrote on 28th March 1974, to the District Judge that his official engagements were heavy and that it would be, most inconvenient for him to attend the court and therefore requested that either he may be dropped as a witness or ask the complaint to seek a commission which might serve the purpose. Apparently in pursuance of this the trial court passed the impugned order directing that the witness Shri Radha Raman be examimed on open commission, It is againsf this order that the present petition has been filed.

(2.) Mr. Bakshi, the counsel for the defendant petitioner contended that once it has been found that Shri Radha Raman was a relevant witness and the court has permitted him to be examined the only legal proper course was to examine him in court and examination on commission could not in law have been ordered. In the present case the witness is residing within the territorial jurisdiction of the trial court and also there was no reason why the normal practice of examing the witness in court should not be followed. I find from the letter of Shri Radha Raman that the reason given is that his official engagements almost every day are too heavy and he found it inconvenient to come to the court. But once the examination of the witness even on commission has been allowed, it is apparent that during the time when he is being examined he would not be in a position to attend to any other business. Obviously it cannot be suggested that while the commission is examining the witness he will be in a position to attend to any other work. There will, thus, be no dislocation of his official duties because the time when he is examined in court and on commission would have to be restricted to giving evidence. Order 26, Rule 4 Civil Procedure Code permits the court to issue commission in a case of any person in the service of the Government who cannot in the opinion of the court, attend without detriment' to the public service. Mr. Bakshi contends that any person in the service of the Government would not include the Chief Executive Councillior. That apart even for the application of clause (c) of Rule of Order 26 Civil Procedure Code it is essential for the court to find that the presence of the witness in court could not be enforced without detrimental to the Public service. This clause is apparently meant to cover the cases of those persons who though within the jurisdiction of the court may by the very nature of duly find it impossible to be available in court because of the emergant work they may be doing. Obviously, the work of Chief Executive Councillior is not such that he cannot be away from his office. In the normal course, the Chief Executive Councillior would have to be away from his office very often and I do not see how if he is away from his office to attend the court for giving evidence, it will in any manner be to the detriment of public service.

(3.) The Chief Executive Councillior of Metorpolitan council is not one of the persons who shall be entitled to exemption from personal appearance in court under Section 133 C. P. C. Amongst others, the name of Administrator of the Union Territory is mentioned. The Chief Executive Councillior is not one of the persons named therein. The witness therefore can not ask for examination on commission as a matter of right under Section 133 Civil Procedure Code The witness being within the local limits of the trial court I, thus, do not find that there is any justification for directing the said witness to be examined on commission. I can understand that the witness may reauest the trial court to fix a particular date and definite time for his evidence so that his examination may take the least possible time. I should also think that a witness would feel more secure and comfortable if his evidence is taken under the protective custody of the court which can prevent any scandalous and irrelevant question from being asked than before the commissioner who has to record all the questions and answers even though, subject to objection but has no power to over rule any question even if he considers it irrelevant. Nor inally it should be the desire of the witness himself if he is within the local limits of the court that he should give evidence under the protective presence of the presiding officer. I would, thefore in the circumstances set aside the order of the trial court and vacate the order for the examination on commission. I would instead direct the Mr. Radha Raman will be examined in court. The date and time for the examination of Mr. Radha Raman may be fixed sometime in July, 1974 and he may be informed well in time about the exact date and time when he will be required to come to court for giving evidence. The plaintiff is present in court. He also joins in the prayer of the counsel for the defendant that Shri Radha Raman bs examined in court as witness.