D NITYANANDAM Vs. M D S HABEEN AYSHA

JUDGEMENT

(1.) THE defendants 1 and 2 in C.S.No.500 of 1988, who were respondents in Application No.2386 of 1991, have preferred this appeal against an order, appointing Advocate Commissioner to record the oral evidence of one Balasubramaniam, the husband of the 3rd defendant, in the suit and the third defendant herself. It is not in dispute that the 1st defendant/appellant is the husband of the 2nd defendant/appellant and the 3rd defendant/ respondent is the sister of the 2nd respondent. THE 3rd defendant sold the property bearing No.3, Sixth St., Gopalapuram, Madras to the plaintiff/ respondents 1 to 3 herein, under a registered deed. According to the plaintiffs/respondents, the 3rd defendant delivered vacant possession of the upstairs portion of the house property, at the time of purchase and when they (plaintiffs/respondents) demanded vacant possession from the respondents 1 and 2, of the portion in their occupation, they stated that they would vacate the same but they did not comply. Without going into other details, however, it seems that the 1st appellant herein filed O.S.No.3454 of 1988 on the file of the 12th Assistant Judge, City Civil Court, Madras, seeking a relief of permanent injunction, restraining the plaintiffs/respondents from disturbing their possession. THE plaintiffs/respondents, however, filed a suit for declaration and recovery of possession. In the suit filed on behalf of the plaintiff/ respondents the 3rd defendant/respondent filed a written statement, saying that she had no defence to the suit and no objection for the relief asked for by the plaintiffs/respondents and that the suit may be decreed as prayed for, by the plaintiffs/respondents. THE written statement has been signed and verified at Singapore or 9.7.1991.

(2.) . It is not necessary for the purpose of this appeal to refer to the controversy and issues in the suit and the respective stand of the parties. All that is necessary, however, is to take notice of the fact that the plaintiffs/respondents decided to call for the 3rd defendant/respondent and her husband, as witnesses, to depose on their behalf and since according to them, the 3rd defendant/respondent and her husband lived in Singapore, they applied for a commission to issue to record their deposition. The grounds on which the commission was sought for are set forth in the affidavit filed in the trial. It is to the effect that- (1) The 3rd defendant/respondent has not challenged the plaintiffs/respondents" right to the property; (2) The first and second defendants/appellants are squatting on the property by putting forth prevaricating defences; (3) The appellants herein have challenged the execution of the sale deed. Thus if is necessary to prove the due execution of the sale deed. (4) The sale deed was attested by one K.R.Prakash, son of K.R.Balan who was residing upstairs of the suit property. He has vacated and gone away. He is thus not available to depose. (5) The husband of the 3rd defendant/respondent Balasubramaniam is the other attesting witness. His evidence is necessary. After saying as above, it is said on behalf of the plaintiffs/respondents that when contacted on telephone on two occasions, both the 3rd defendant/respondent and her husband Balasubramaniam, expressed their willingness to depose on behalf of the plaintiffs/respondents, but they represented that while the 3rd defendant was unable to move about suffering with arthiritis, the husband of the third defendant Balasubramaniam, was suffering with acute blood pressure and both of them were under constant medical attendance, and therefore, they desired, that if their evidence was required, they should be examined on appointment of a commissioner by this Court.

(3.) AN innocent act of a party in moving the court in a given situation to appoint an advocate-commissioner to record deposition of a witness or even a party can never be viewed as an act interfering with the due course of justice and if the discretion is exercised by the Court of Law, to order for examination of a witness on commission, possibly no exception can be taken. The Code of Civil Procedure has envisaged a scheme under O.16 for summoning of a witness and the attendance of such witness/The court may depart from the procedure prescribed therein under the situation as-noticed in Rule 16, O.16, C.P.C. Rule 19 thereof further proceeds to state that- "No one shall be ordered to attend in person to give evidence unless he resides - (a) Within the local limits of the court's ordinary original jurisdiction; or, (b) without such limits but at a place less that one hundred or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and place where the court is situate less than 9 (5 hundred kilometres) distance from the court house: Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person." Coming however as to parties own evidence in a proceeding, Rules 20 and 21 of O.16, arc relevant; They read as follows: "20.Consequence of refusal of party to give evidence when called on by court: Where any parly to a suit present in court refuses, without lawful excuse, when required by the court, to give evidence or to produce any document then and there in his possession or power the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. 21. Rule as to witnesses to apply to parries summoned: Where any party to a suit is required to give evidence or to produce a document the provisions as to witness shall apply to him so far as they are applicable." 21.. Rules in case of parties appearing as witnesses: (Madras Amendment). When a party to a suit is required by any other party thereto to give evidence or to produce document, the provisions as to witnesses shall apply to him as applicable. 21 .(2) When a party to a suit gives evidence on his own behalf the court may, in its discretion permit him to include as costs in the suit a sum of money equal to the amount-payable for travelling and other expenses to other witnesses in the case of similar standing." From the above we shall presently notice that it enabled the plaintiffs/respondents to suggest that the 3rd defendant/respondent although a party, is summoned as a witness of another parly and those rules that are applied to witnesses have to be applied and not the rules which are applied to a party to a suit when such a parly decides or declines to depose as a witness, O.26 of the Code of Civil Procedure deals with cases in which court may issue commission to examine witness; O.26, Rule 1, C.P.C. reads as follows: "ANy court may in any suit 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 this Code from attending the court or who is from sickness of infirmity unable to attend it; Provided that a commission for examination on interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do. Explanation: The court may for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person without calling the medical practitioner as a witness. "We are not concerned with the question whether the court has got power to issue a commission for the examination of a person, who resides within the local limits and the jurisdiction of the court, Rule 4 of O.26, C.P.C., however enumerates persons for whose examination, commission may issue: Rule 4 of O.26, C.P.C. reads as follows: "4. Persons for whose examination commission may issue: (1) ANy court may in any suit issue a commission for the examination or interrogatories or otherwise of-(a) any person resident beyond the local limits of its jurisdiction; (b) any person who is about to leave such limits before the date on which he is required to be examined in court; and (c) any person in the service of the Government who cannot, in the opinion of the court, attend without detriment to the public service: Provided that where, under Rule 19 of O.16, a person cannot be ordered to attend a court in person, a commission shall be issue for his examination if his evidence is considered necessary in the interest of justice; Provided further that a commission for examination of such person on interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do. (2) Such commission may be issued to any court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the court issuing the Commission may appoint. (3) The court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate court." The two orders noticed by us, as above, fall under incidental proceedings as indicated in Part 111 of the Code of Civil Procedure, particularly Sec.75. Sec.75, C.P.C. states that subject to such conditions and limitations as may be prescribed the court may issue a commission to examine any person; to make a local investigation; to examine or adjust accounts or to make a partition; to hold a scientific, technical or expert investigation..... This power, as appearing front the language in Sec.75, C.P.C. and the various rules in O.16 and O.26 of the Code, is discretionary. In Filmstan Private Ltd., Bombay v. Bhagwandas Santprakash, A.I.R. 1971 S.C. 61, the Supreme Court has observed as follows: "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 single 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." The discretion as envisaged in this behalf is indubitably a judicial discretion. The exercise of judicial discretion is always guided by well settled principles of law. The learned trial judge has taken notice of such principles and has rightly stated as noticed by us earlier that the court has to exercise its discretion judiciously and" there is a difference between party witness and third party witness although in the Code of Civil Procedure, there is no distinction drawn as regards this point, between the plaintiff, the defendant and the witness yet as a rule of prudence this rule has been applied. Normally a party would not be allowed to be examined on commission. It would not be unusual privilege to exempt the party from attendance in court merely because he was living beyond the limits of jurisdiction and permitting him or her to be examined on commission." We need not labour to locate the precedents in this behalf but it will be useful to refer to a few of the pronouncements of the courts. In M.A.H.Farook v. Kalikirshnaraju, (1974)2 M.L.J. 46, a learned single Judge of this Court dealt with a case in which the defendant made an application to examine himself on commission before the District Munsif. The District Munsif declined to accept his case that there would be any danger to the person of himself and that of his advocate if they visited Pondicherry in connection with the examination of the petitioner on commission. Nevertheless, he expressed the view that having regard to the status of the petitioner, the respondent's advocate might not be quite free to cross-examine the petitioner at Pondicherry as well as he could do in the court at Ramanathapuram. Relying upon the decision of this Court in Subramaniam Chettiar, In re., (1954)1 M.L.J.. 449 and A.R.Lakshmana Chettiar v. Vadivelu Ambalam, (1967)1 M.L.J. 252, the learned District Munsif rejected the argument advanced on behalf of the petitioner that demeanour of the witness is not of much importance. He expressed the view that the petitioner could not claim the exemption under Sec.133 of the C.P.C., except in cases in which he is sued in his official capacity for anything done in discharge of his duties as the Chief Minister of Pondicherry and has observed in his order that the inconvenience and expenses that the respondent would be put to if the petitioner had to be examined on commission at Pondicherry could not be overlooked. The learned single Judge, upon that has said- "The petitioner is the fourth defendant in the suit and as such he could not have chosen the jurisdiction of the lower court. The court should deal with an application of a defendant to examine himself as a witness on commission as distinguished from an application by the plaintiff vide Viswantha Chetty v. Somasundaram Chetty alias Nagappa Cherry, 46M.L.J. 131. The defendant's application should be treated differently and not like an application by the plaintiff who could choose the forum for the action unlike the defendant. O.26, Rule 4(1)(a) says; ANy court may in any suit issue a commission for the examination of any person resident beyond the local limits of its jurisdiction." Panchapakesa Ayyar, J. in Subramaniam Chettiar, In re., (1954)1 M.L.J. 449, repelled the contention that a commission should not have been issued to examine a party and a defendant and has observed that a commission can be issued under the Code of Civil Procedure for the examination of "any person" including a defendant. Therefore, the petitioner could claim, under the provisions of O.26, Rule 4(1)(a) to be examined on commission having regard to the distance. Dealing with the contention that it was necessary to examine the person in court so that the court might observe the demeanour, Panchapakesa Ayyar, J. has observed in that decision. I cannot agree that this would exclude the jurisdiction of the court for issuing the commission. In all cases where a commission is issued the court cannot observe the demeanour of a witness. The value of demeanour" has been too much emphasized; demeanour is one of those subtle things which are important only when the evidence is evenly balanced. It also gives no opportunity for either side to cross examine the Judge who observes that the demeanour of the witness and acts on it. So it is one of those medieval reliefs, which, though they have some value, are not so important as to take away the rights under the C.P.C., to issue a commission in deserving cases like this." Even in Viswantha Chetty v. Somasundaram Chetty alias Nagappa Chetty, 46 M.L.J. 131, referred to above, where the defendant had been a resident of Rangoon with his family for many years, it has been observed by Krishnan, J. that the defendant should have been allowed to be examined on commission at Rangoon and that the watching of his demeanour which the lower court had referred to in support of its order was not a sufficiently strong ground for dragging the defendant all the way from Rangoon to Ramnad. Therefore, the fact that the petitioner is a defendant and that the court will not have the opportunity to observe his demeanour if he is examined on commission, is not a sufficient reason for disallowing the petitioner's application for examination on commission." In Amino Bivi v. K.M.Raja Mohammed", 91 L.W. 629, Nainar Sundaram, J. had the occasion to examine the case of a witness, who was ordered to be examined on commission on behalf of the plaintiff. In the said decision, it has been observed as follows: ".....He is not only outside the jurisdiction of the court below, but he is at a place not within India and hence, the provisions of 0.26, Rule 5, C.P.C. are attracted. It is true that the order, subject-matter of this revision, is essentially a discretionary order. But the court has to exercise its discretion judicially as to granting or not granting a commission and this Court would be very unwilling to interfere with the exercise of that discretion (sic). If this Court saw that the discretion has been wrongly exercised, if it saw that the case in all its bearings was not laid before the court below; if it saw that the court below misapprehended an important part of the case, this could would interfere. The question is whether the facts of the present case come within the above dictum." This is in so far as the interference in exercise of discretion by the trial court is concerned. On the principles that the courts must follow with regard to issue of commissions, it is further observed in the said decision as follows: "Certain principles have been laid down by courts with regard to issue of commission to examine witnesses. There is a difference between a party witness and a third parly witness. Although in the C.P.C, there is no (sic.) distinction drawn as regards this point, between the plaintiff, the defendant and (sic.) the witness, yet as a rule of prudence this rule has been applied. Normally, a party would not be allowed to be examined on commission. In Lakshmana Chettiar v. Vadivelu Ambalam, 80 L.W. 148, ANanthanarayanan, C.J. observed that it would be an unusual privilege to except the party from attendance in court merely because he was living beyond the limits of jurisdiction and permitting him to be examined on commission. It would be relevant in the context to extract (sic.) the observations of Jagadeesan, J. in Ramakrishna Julvani v. Hard-castle and Company, (1962)2M.L..I. 490.A.I.R. 1963 Mad. 100, which runs as follows: "The witness who is a third parly to the action cannot be compelled to attend court to give evidence if he is a resident at a place beyond 200 miles from the court house; a party to a suit or proceeding has no such unqualified right. The plaintiff having filed the suit in a forum of his choice or in a forum where the suit had necessarily to be instituted, cannot, except in the circumstances of bodily infirmity or other disabling factors, avoid giving evidence in court. A defendant however is in a slightly better position. 11 he is a resident in a far off place, quite a long way from the jurisdiction of the court he can pray for the issue of a commission to examine him as a witness... The general is, and this should not be lost sight of or blurred that the evidence of a witness in an action, be he or she a party or not, should be given in public court and tested by cross-examination. Inability to attend court on grounds of sickness, or infirmity or detriment to the public-service, would justify the issue of a commission. The court has got a discretion to relax the rule of attendance in court where the person sought to be examined as witness resides beyond the local limits of the jurisdiction of the court. This discretion may be exercised even if the person happens to be no other than the defendant (See: Subramaniam Chettiar, In re.. (1954)1 M.L..1. 449. There can of course be no rule of law demarcating the boundaries and the area of the discretion to be exercised in these matters. What can however be stated is that the court of nisi prins must act judicially having regard to all the circumstances of the case, the desirability of the physical presence of the witness in court to enable it to observe his or her demeanour and not the unusual fact that convenience and economy of expenses for the applicant may involve his opponent in great inconvenience and consideration expense." The principles as stated in the judgment of this Court in Ramakrishna Kulveni Rai v. Hardcastle and Company, (1962)2 M.L.J. 490 and extracted in the judgment of this Court in Amina Beevi v. Raja Mohammed, 91 L.W. 629, as referred to supra, have stood the test of time although there are various principles of law that are all laid on the fact of a particular case, by the courts in India, in substance, there has never been a departure to the said rule.