HABIBULLAH MAJUMDER Vs. NIKHIL PODDAR AND OTHERS

JUDGEMENT

(1.) In a suit filed against Habibullah, a resident of Pakistan, by Nikhil Poddar and others for recovery of damages on account of malicious prosecution, he (the defendant) moved an application in the trial Court praying that he and his witnesses, who are also residents of Pakistan, should be permitted to be examined on commission. That application was rejected by the trial Court on 10 -4 -1967 on the basis that there was no reciprocal arrangement between India and Pakistan in regard to examination of witnesses on commission. Aggrieved by that order, Habibullah has come up in revision to this Court.

(2.) It was held in the case of Mohammed Azizul Rahman Khan v/s. Mohammed Ibrahim, : AIR 1958 All 19, that the issue of a commission for examination of a witness is not the right of a party but is dependent upon the discretion of the Court. The High Court observed further that if there are no reciprocal arrangements between India and Pakistan respecting the examination of witnesses on commission, the Court is well within its rights in rejecting an application for issue of commission. The High Court agreed with the trial Court's finding that there was no reciprocal arrangement between the two countries for examination of witnesses on commission.

(3.) As against the two authorities of Allahabad and Punjab High Courts cited on behalf of the respondents, Shri M. R. Choudhury, appearing for the defendant -petitioner has placed reliance on the decision in Hukumal v/s. Manghoomal,, AIR 1953 Ajmer 27, where it was held that if "the witness lives at a considerable distance in Pakistan and cannot be compelled to attend the Court" a commission can be issued for his examination. A perusal of the report shows that no objection was raised before the Judicial Commissioner that there being no reciprocal arrangement between India and Pakistan for examination of witnesses on commission the prayer made for the purpose was not tenable. Therefore, the decision in Hukumal's case is not much of importance because the point that has arisen for determination in the instant revision petition was not debated in that case.