PRITAM SINGH Vs. SMT. VIDYA AND ANOTHER

JUDGEMENT

(1.) THE Plaintiff -Petitioner filed a suit for possession of certain land which was originally owned by one Ganga Ram. The main basis of the claim is a will which is alleged to have been executed by Ganga Ram in favour of the Petitioner at Nagpur on November 15, 1957. Defendant -Respondent No. 1 Smt. Vidya contested the suit on the ground that she is the widow and sole heir of Ganga Ram. She has denied the execution of the will by the deceased. In order to prove the will the Plaintiff -Petitioner wanted to examine both of its attesting witnesses. Admittedly none of those attesting witnesses resides within the local limits of the jurisdiction of the trial Court at Garhshankar. They are residents of Nagpur which place is not only not less than 200 miles away from the Court at Garh -shankar, but is in fact more than a thousand miles away in Maharashtra. The Plaintiff, therefore, made an application under Order 26 Rule 4 of the Code of Civil Procedure for examining the two attesting witnesses at Nagpur on commission. The application was opposed by Defendant -Respondent No. 1. In fact she made a cross -application for directing the Plaintiff to examine the two attesting witnesses in the Court at Garhshankar. After noticing the rival contentions of the parties. Sari S. N. Aggarwal, Subordinate Judge Second Class, Hoshiarpur at Garshankar, declined the prayer of the Plaintiff -Petitioner, accepted the application of the Defendant -Respondent and directed the Plaintiff to produce his witnesses in Court "at his own responsibility",. The Plaintiff has come up in revision against that order.

(2.) MR . H. S. Sra, Learned Counsel for the Defendant -Respondents, has raised a preliminary objection to the maintainability of this petition. His argument is that an order declining to issue a commission under Order 26 Rule 4 of the Code is not revisable under Section 115. Counsel has cired two judgments in favour of his submission. First is the judgment of H. R. Sodhi, J. (as he then was) in Mangal Singh and other v. Piara Lal, 1971 P.L.R. 531. In a vendee's suit for possession instituted at Amritsar, the Defendant made an application after the conclusion of the Plaintiff's evidence and on the date fixed for the Defendant's evidence to examine a witness in Sombohli, district Meerut, on commission as the report on the summons sent to the witness was that the witness had gone to that place The learned trial Judge rejected the application of the Defendant with the observation that it appeared to him that the Defendant who was in possession of the suit property was trying to prolong the proceedings. The learned Subordinate Judge also gave expression to the view that he was not satisfied as to how evidence of the said witness was relevant to the material issue in the case. In the application for issue of commission it had not been stated as to why it was necessary to examine the witness at all. It was in those circumstances that while dismissing the petition for revision of the order of the Subordinate Judge this Court observed that though a witness resident beyond 200 miles of the Court cannot be forced to appear, it does not follow that the commission roust be issued for his examination as there may be cases where the process of the Court is sought to be abused and persons residing at distant places are sought to be examined on commission "only to prolong the proceedings or for any other extraneous reasons". No such consideration applies to the present case. It was against the refusal to issue a commission in the case of the above type (where the trial Court had distinctly recorded the finding that the application had been made to delay the proceedings and without any justification) that the learned Judge held that the remedy for the aggrieved party was not to come up by revision under Section 115 of the Code of Civil Procedure, but to make non -issue of the commission a ground of appeal against the final decree passed in the suit.

(3.) RELIANCE for the view taken by the learned Chief Justice was placed by him on the judgment of the Lahore High Court in T. W. V. Evers v. The American Motor Company through Latif Ahmad. In A. V. Nataraja Konar v. Poovalingam Pillar, (1967)11 M.L.J. 369. it has been held that the issue of commission in respect of cases falling under Order 2 Rule 4 is not one of discretion, but it is in the nature of a statutory right of the litigant. The only proviso added to that rule by the learned Judge of the Madras High Court is that the commission may be declined where the party praying for it is guilty of latches.