GURPAL KAUR Vs. CHARAN KAUR AND OTHERS

JUDGEMENT

(1.) Gurpal Kaur and her minor children, Miss Satwinder Rai and Jastinder Singh Rai, have filed a suit for possession of land on the basis of a Will. The plaintiff Gurpal Kaur as well as the attesting witnesses of the Will are residing in West Germany. An application was, therefore, filed by the plaintiffs under section 78 and Order XXVI Rule 4 of the Code of Civil Procedure (hereinafter called 'the Code') to examine the plaintiff and her witnesses on commission. This application was dismissed by the trial Court vide an order dated December 7, 1983. This revision petition has been filed by the plaintiffs to challenge the said order.

(2.) Admittedly, the witness sought to be examined are relevant witnesses. All of them are living outside the jurisdiction of the Court and are, therefore, not amenable to the process of the Court. The trial Court has refused to issue commission to examine these witnesses in West Germany on three grounds. Firstly, that the Court will be deprived of watching the demeanour of the witnesses. Secondly, the entire cross examination of the defendants will become known to the witnesses. Thirdly, the defendants will have to bear lot of expenses. In my view all these grounds are irrelevant and the trial Court was not justified in refusing to exercise jurisdiction vested in it under Order XXVI, Rule 4 of the Code taking these factors into consideration.

(3.) In the context of the demeanour of the witnesses, it cannot be lost sight of that civil cases are handled at the trial stage by several Subordinate Judges and rarely a suit is decided by the same Subordinate Judge who records the entire evidence. The recording of evidence of a witness on commission living outside the territorial jurisdiction of the Court, therefore, cannot be refused simply on the ground that the Court will be unable to watch the demeanour of the witnesses. The statutory right vested in a party to litigation to get himself and his witnesses examined on commission cannot be overridden by such a consideration. The same argument will apply to the other ground that the entire cross-examination of the defendants will become known to the witnesses. If the issue of commission is to be declined on this ground then probably in no case the evidence of a witness could be recorded on commission.