BHAGVVAN SWAROOP Vs. SHAH MAGGAJ

JUDGEMENT

(1.) Petitioner is the first defendant in O S No. 36 of 1961 on the file of the learned Second Addl; District Judge, Cuddapah. He has filed this revision petition for revising the order passed by the latter in l.A| No 68 of 1967. Shah Maggaji Shermal firm (sole respondent in the present C.R.P.) doerbusiness at Cuddapah. It sent turmeric under a contract to first defendant Which is a partnership firm doing business at Moradabad. The first defendant did not take delivery, with the result the plaintiff sold the turmeric in bpen market and the plaintiff filed O.S No. 36 of 61 Sub Court, Cuddapah Which subsequently came to be renumbered as O.S. No. 15 of 1964 on the file of the learned Second Addl District Judge, Cuddaph. The present defendant (firm of Mora dabad) filed O.S. No. 102 of 60 in the Court of the learned District Munsif, Moradabad in Uttar Pradesh, .for claiming damages regard ing the same transaction putting forward his own pleas. For convenience I am referring to the parties in this case by the denomination in O.S. No. 15/64. The defandant filed I.A. No. 5.2 of 1967 for examination of Bhagwan Swarup Bhagwati Prasad (managing partner of the defendant-partnership) as well as certain witnesses on commission. On 12-4-67 the Second Additional District Judge passed an order as follows: "For memo as to witnesses to be examined and deposit of Rs. 300/-for commissioner's expenses. Adjourned No 18-4-1967 for deposit." On 18-4-67 the defendant did not make the deposit and the case was adjourned to 22-4-67. On that date also defendant failed to deposit and the learned Second Additional District Judge dismissed the petition and posted the suit to 7-7-67. It appears that 22-4-1967 was the last working day before the vacation. Soon after the re-opening of the District Court, the defendant filed a fresh I A. No. 68 of 1967 with prayer "For the examination of the first defendant and his witnesses" In the affidavit in support of the petition be said that he was prepared to deposit Rs. 300-00 at any time when the Court was pleased to fix and he explained that his failure to deposit already in the earlier petition was due to his residing far away from Cuddapah. The plaintiff-respondent filed a counter contending that the application was only meant to delay the proceedings without any bona fides and that in case the court appoints a commissioner, the plaintiff might be permitted to examine one or two witnesses mentioned in the plaintiff's memo through the same commissioner.

(2.) The learned Second Additional District Judge dismissed the petition. He held that so far at the party (first defendant-Bhagawan Swaroop Bhagavati Prasad) was concerned it was not shown satisfactorily that he was incapable due to reasons of health to come and depose in the Court at Cuddapah, He also held that much reliance could not be placed on the medical certificate which was filed in the matter. The learned Judge also observed that there was no valid reason as to why any partner other than Bhagwan Swaroop Bhagavati Prasad could not be examined. As regards the witnesses, the learnee Second Additional District Judge mentioned as follows:

(3.) He pointed out that "while this suit has been pending since five years none of the parties filed their documents nor has any one taken steps." The learned Advocave for the defendant has referred in detail to the course of the proceedings in the suit. It cannot be said that the defendant was solely or mainly responsible for the suit being pending for such a long time. The learned Judge has observed as follows: "Except under exceptional circumatances, a party to a suit cannot claim the privilege of being examined on commission." This observation is not correct. Order XVI Rule 19 runs as follows:- "No one shall be ordered to attend in person to give evidence unless he resides. (a) within thel ocal limits of the Court's ordinary original Juri sdiction, or K (b) there is eourt house. (b) without such limits but at a place less than fifty or (where c js..................) 1 sis than two hundred miles distance .from the