PRAMOD SARASWAT Vs. SRI ASHOK KUMAR SARASWAT

JUDGEMENT

(1.) This revision application under Section 115 of the Civil P. C. is directed against an order dated 30th May, 1981, of the Court of the 1st Additional District Judge, Allahabad refusing the applicant's prayer for examining three of the witnesses on commission, in the course of the trial of a divorce petition. The wife is the applicant in this Court and the opposite party husband is the petitioner for divorce of the District Court. The ground on which the application for examination of the witnesses on commission was made is that these witnesses reside at Dehradun which is a place more than 500 KM away from Allahabad, the place where the petition for divorce between the parties is being tried. Rule 19 of Order 16 of the Code of Civil Procedure provides.

(2.) The objections to the application for examining the said three witnesses on commission were that the list of witnesses was not filed in compliance with Rule 1 of Order 16 of the Civil P. C. and the names of these three witnesses disclosed for the first time in the affidavit filed in support of the application for the issue of commission. It was then said that the first witness is the cousin of the applicant wife and took active part in the settlement of marriage from the applicant's side the second witness was his wife, and the third witness was the applicant's mother. It was accordingly not at all necessary to summon any of these witnesses as they will come of their own accord. It was added that for effective cross-examination of these witnesses, the petitioner-husband's presence at Dehradun will be indispensable but there was imminent danger to his life at Dehradun or Rishikesh. It was also added that it was in the interest of a just and fair trial that the witnesses were examined before the Court.

(3.) The learned Additional District Judge has rejected the application on the ground that the application or the affidavit filed in support of it do not disclose any reason as to why the statements of these witnesses should be taken on commission and the mere allegation that they were residents of a place which is about 600 kilometers from Allahabad was not sufficient for the issue of commission, as it must be shown by a party moving such an application that the evidence of such witnesses is necessary in the interest of justice that, nothing has been said in the application or the affidavit to show that the evidence of these witnesses is necessary in the interest of justice, and lastly, it was added, that the witnesses are under the control of the applicant, and in view of these facts the application was liable to be rejected.