PANNA LAL SURI Vs. SURINDER KUMAR KHULLAR

JUDGEMENT

(1.) This order shall dispose of the application filed by the plaintiff under Order 26 Rules 1, 2 & 4 read with Order 16 Rule 19 Civil Procedure Code praying for allowing the plaintiff to examine the plaintiff and other five witnesses mentioned in the list of witnesses of the plaintiff, on commission at Calcutta instead of Delhi.

(2.) Suit No.885/1982 was instituted in this Court by the plaintiff seeking for a decree for possession and mesne profit, while Suit No.1342/84 was instituted by the plaintiff in this court for specific performance of an agreement of sale. By an order passed by this court on 29th March, 1995 in Suit No.1342/84 both the aforesaid suits were consolidated and ordered to be tried together. On 27th August, 1996, it was recorded by this court that the list of witnesses of the plaintiff was filed and accordingly Sh.M.L.Mehta, Joint Registrar was appointed as Local Commissioner for recording evidence in this suit. Parties were directed to appear before the Local Commissioner for fixing the dates of trial before the Local Commissioner. On 2nd December, 1996, counsel for the plaintiff submitted before this court that the witnesses of the plaintiff are based at Calcutta and they are unable to come to Delhi and accordingly the matter was adjourned at the request of counsel for the plaintiff. On 10th April, 1997, a statement was made by the counsel appearing for the plaintiff that he would be moving an appropriate application for examination of the plaintiff and other witnesses who are residents of Calcutta, at Calcutta. In pursuance of the aforesaid statement the present application has been filed by the plaintiff seeking for examination of all the witnesses of the plaintiff at Calcutta, on commission.

(3.) The aforesaid prayer of the plaintiff is opposed by the defendants 2 and 3 contending, inter alia, that the aforesaid prayer should not be entertained as issuance of commission, at the request of the plaintiff, would mean heavy expenditure on the part of the defendants who are retired persons and they being retired persons cannot afford to bear all the expenses and examination of witnesses at Calcutta would be denial of justice to them as it would practically be an ex parte proceedings. It is also stated that defendants 2 and 3 have no means to undergo the expenses of sending a counsel to Calcutta. It was stated that if the court is persuaded to issue a commission for examination of the witnesses at Calcutta, all the expenses of the defendants 2 and 3 and their counsel of going to Calcutta as well as their boarding and lodging and the fee of the counsel may be directed to be borne by the plaintiff.