ZABIYA BIBI Vs. A. SIVAPERUMAL

JUDGEMENT

(1.) THIS is an application, to revise an order of the learned District Munsif of Salem, dated 7th December, 1966, dismissing an application filed by the petitioner for examining herself on commission. I must straightaway point out that the petitioner is the plaintiff in O.S.No. 674 of 1965 on the file of the learned District Munsif, Salem. The present I.A. No. 2003 of 1966 for the purpose of examining her. on commission was filed on the ground that she was residing 200 miles away from Salem in Nilambur in Kerala State and her husband has been recently discharged from the Mental Hospital and she had been attending on her husband. The learned District Munsif dismissed the application holding that previously the respondent had filed an application directing the petitioner to be present in the Court and in that application no objection was taken by the petitioner that she could not because of the distance, be present, in Court. The learned District Munsif has further pointed out that Nilambur is not far away from the Court and that there is no difficulty for the petitioner to appear before the Court if she really intended to do so. It is to revise this order the present civil revision petition has been filed.

(2.) MR . N. Appu Rao, learned Counsel for the petitioner, contends that the Code of Civil Procedure, does not make any difference between a witness and a party to a suit and once a person comes within the scope of Order 16, Rule 19 Code of Civil Procedure, such a person is entitled to be examined on commission, whether such a person happens to be a witness or a party to the suit. Admittedly, whether a commission should be issued for the examination of a witness or not is always a matter of discretion of the Court. But, in exercising the discretion, the Court will have to take into consideration the fact whether the person sought to be examined on such commission is a party to the suit or merely a witness. There is a vital difference between a witness and a party to the suit, because, a witness is not interested in the subject -matter of the litigation and he is a third party to the action, but with reference to the parties, the same cannot be said. Even as between the parties, there is again a basic difference between the plaintiff and the defendant. The plaintiff is the person who has initiated the action and has chosen the forum and dragged the defendant into the Court. Consequently, with reference to the plaintiff, when he or she wants to give evidence in support of his or her case, the position is different from that of a third party being called to the Court to give evidence in support of the plaintiff or the defendant. Therefore I am unable to agree with the contention for the petitioner that there is no difference between a party witness and a third party witness.

(3.) ON the other hand, Jagadisan, J., in Ramakrishna Kulwant Rai v. F.E. Hardcastle & Co. : (1962) 2 MLJ 490 had observed: