ASANAND NANAK CHAND AGGARVAL Vs. C A AYYATHURAI

JUDGEMENT

(1.) This Civil Revision Petition arises out of an order in a suit for damages now pending before the Temporary Additional District Judge of Trivandrum. The plaintiff in that suit is a contractor residing at Trivandrum. Defendant 1 is a Firm of Military Contractors doing business at Ludhiana in Punjab and defendant 2 is a commission agent residing and doing business at Amritsar, also in Punjab. On 6.6.1955, defendant 2 applied to the lower court to issue a commission to examine him and his three witnesses. Two of these witnesses are persons residing at Ludhiana in Punjab and the remaining witness is a person residing at Amritsar. Defendant 2 himself is residing at Amritsar as has been stated already. These witnesses and defendant 2 were to be examined at their place of residence. The plaintiff opposed the application, but the court below allowed it on 1.7.1955 expressly overruling the plaintiffs objection that the application was a mala fide move to cause delay and inconvenience to him and holding that it would be oppressive to defendant 2 and his witnesses if the application is not allowed. Six days later, on 7.7.1955 the plaintiff moved the lower court to make defendant 2 deposit the necessary amount to meet his expenses for proceeding to Amritsar and Ludhiana and instructing counsel at those places of examine the witnesses. Such expenses were to include also the Advocates fee for the counsel to be engaged in Punjab. Purporting to act under O.26 R.15 C.P.C., the lower court allowed this application and ordered defendant 2 to deposit Rs. 300. The Civil Revision Petition is filed by defendant 2 against the order calling upon him to deposit the said amount.

(2.) The contention urged here on his behalf is that the lower court had no jurisdiction under O.26 R.15 to direct the prospective expenses of the plaintiff to be deposited. The plaintiffs counsel contended that the lower court had the jurisdiction to pass this order not only under O.26 R.15, but also under S.151 C.P.C. Whether the lower court had the jurisdiction to pass the order under S.151 or not, it is clear from the order itself that the lower court has acted only under O.26 R.15. The relevant portion of the order reads:

(3.) O.26 R.15, C.P.C. provides: