SUDHANSU MOHAN MUKHERJI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a plaintiff's petition directed against an order of the learned Munsif of cuttack allowing - second defendant's petition to examine ten witnesses on commission by the small cause court judge at Madras.

(2.) THE plaintiff commenced an action for the recovery of a sum of Rs. 2706-6-0 from the defendants for non-delivery of four bales of yarn which were despatched from Madura to the address of the plaintiff at Cuttack. The whole case of the plaintiff was that it was due to the misconduct and negligence on the part of the railway i authorities that he incurred the above loss. There were two defendants to the action, the first being the Eastern Railway which is now changed to South Eastern Railway and the second being the Southern railway. The defence of both, the defendants was that there was a theft in the running train and that they handed over the case to the police and the police could not detect. Hence they are not liable for the loss suffered while the goods were in transit. During the pendency of the suit, the second. defendant filed an application under order 26, Rule 4 read with Order 16, Rule 19 of the Code of Civil Procedure on 13-1955, for the examination of ten witnesses on his behalf at Bezwada, which apparently was a mistake, and consequently the 2nd defendant filed another petition on 21-12-1955, to examine the said witnesses at Madras by the small cause court judge, Madras. The learned Munsif relying on the provisions of Order 16, Rule 19 read with Order 26, Rule 4, C. P. C. , allowed the second defendant to examine all his ten witnesses at Madras on commission by the small cause court judge.

(3.) MR. Sen, learned counsel on behalf of the petitioner, contended that the order of the learned Munsif is clearly against the provisions of law and. hence it ought to be set aside. His whole contention was that according to the provisions of Order 26, rule 4, it is within the discretion of the Court to allow or not to allow a witness to be examined on commission. Thus, the language employed in Order 16, Rule 19 is mandatory but when read with Order 26, Rule 4, it leaves the Court to exercise its discretion.