KISHAN L KRIPALANI Vs. SIEMENS INDIA LIMITED

JUDGEMENT

(1.) This petition challenges the propriety and legality of the order passed by a Judge of the Court of Small Causes, Bombay, on 19th April, 1983 on an application made by the petitioner for issuing a commission for examination of four witnesses who are in Delhi under Order XXVI, Rule 4 of the Code of Civil Procedure. The petitioner has filed a suit against the respondent for possession of a flat Bearing No. 45-A in Anita Building situate at Mount Pleasant Road, Bombay, which is in the possession of the respondent as a tenant. The said suit had been filed on a ground which is available to a landlord under section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as the Bombay Rent Act.

(2.) The petitioner says that he required the said flat, hereinafter referred to as the suit premises , reasonably and bona fide for his own use and occupation because, among other things, his mother, who is an old lady of 75 years and who has several ailments, requires to stay in Bombay and away from Delhi where she is at present staying. The ground therefore, is that the mother of the petitioner has been advised by doctors in Delhi that the Delhi climate is not conducive to her health and that she should shift to Bombay. In order to prove this fact the petitioner wants to examine some doctors in Delhi who can depose to the fact about the health of the petitioners mother and of her need to go to Bombay.

(3.) This application was resisted by the respondent on the ground that the witnesses who are to be examined also have got to be cross-examined by the respondent. If commission is issued, cross-examination of the witnesses would be impossible because the respondent cannot be compelled to go to Delhi for the said purpose. Mr. Mehta, the learned Advocate appearing for the petitioner, has stated these facts and has contended that the learned trial Judge who rejected this application by her order dated 19th of April, 1985 has not exercised jurisdiction vested in her by law. In any case, if discretion has been exercised, that discretion ought to have been exercised in favour of the petitioner because, according to him, interests of justice so demand. I have with the assistance of Mr. Mehta gone through all the material and through the judgement of the learned trial Judge. The learned trial Judge, in the first place, held that the witnesses whom the petitioner wants to examine are amenable to an order made by the Small Causes Court at Bombay under Order XVI, Rule 19 of the Code because, according to the learned trial Judge, those witnesses reside within the place covered by the said rule. In such a case it would be inadvisable to exercise the powers conferred upon a Court under Order XXVI, Rule 4 of the Code. The learned trial Judge proceeded on the assumption that the petitioner is sufficiently affluent to bear the expenses of the witnesses from Delhi that they would be willing to give evidence in Delhi if they are to be paid air fare as contemplated by the proviso to Order XVI, Rule 19 of the Code. The learned trial Judge was also not impressed by the affidavits filed on behalf of the doctors in Delhi that they would be willing to give evidence in Delhi if examined on commission and it would be difficult for them to come to Bombay. The learned trial Judge has thus used her discretion which, I shall point out shortly, vests in her by Order XXVI, Rule 4 of the Code.