MANI KATHANAR Vs. MAR PHILEXINOS

JUDGEMENT

(1.) The 1st defendant, who is a Bishop, filed an application before the lower court to have him and two other Bishops examined on commission. The lower court allowed the prayer and the plaintiffs have come up in revision.

(2.) S.132 & 133 of the Code of Civil Procedure deal with exemptions from personal appearance in court. The former relates to women, who, according to the customs and manners of the country, ought not to be compelled to appear in public; and the latter relates to certain high dignitaries like the President and the Vice president of India, the Judges of the Supreme Court and the High Courts, the Ministers of the Union, the Governors and Ministers of States etc. In both these categories Bishops are not included. The other relevant provision dealing with the issue of commissions is O.26 R.1 of the Code. That rule provides that a court may 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 the Code from attending the court or who is from sickness or infirmity unable to attend it. Therefore under O.26 R.1 a commission may be issued to examine a person, if he establishes that he is unable to attend the court due to sickness or infirmity.

(3.) It is not the case of the Bishops in this case that they are so sick or infirm as to be unable to attend the court. Therefore, on the basis of the relevant provisions in the Code of Civil Procedure the commission should not have been issued. On the ground that a Bishop is a person, who has administrative duties and who has very little time to appear in court, even if that is true, no commission should have been issued to examine him. As far as possible the Judge who tries the case must hear the evidence. In this connection it will be instructive to refer to a decision of the Madras High court in A. Marcalline Fernando v. St. Francis Xavier Church ( AIR 1961 Mad. 31 .) The Civil Revision Petition is therefore allowed and the prayer for commission is dismissed.