KAMLA DEVI MITTAL Vs. MANAGING COMMITTEE

JUDGEMENT

(1.) This civil revision arises from the order of the learned Subordinate Judge IInd Class, Moga, dated 16th of September, 1976, vide which he declined the application of the petitioner, who was living in England, for her own examination on commission in support of her case. The grounds on which the learned Subordinate Judge dismissed the application are that the petitioner has chosen her own forum for filing the proceedings for making the award a rule of the Court in the Court at Moga and that the ground taken by the petitioner was that she gone to England for treatment for which she failed to produce the necessary evidence to satisfy the Court.

(2.) At the outset Shri H.L. Sarin, learned counsel for the respondent, raised an objection that the rejection of the application of a party to issue a commisison to the witness does not amount to 'case decided' as this term is used in Section 115 of the Code of Civil Procedure. On that account he has urged that the revision is not competent. He has cited Mangal Singh and another v. Piara Lal,1971 PunLR 531, a Single Bench decision of this Court. In this case the witness of the defendant had left for Uttar Pradesh before his examination. The application for the examination of this witness on commission was rejected by the Subordinate Court. On revision against that order, it was held :-

(3.) The learned counsel for the petitioner urged that in the application he had also prayed for the examination of the Post-Master in England as a witness. His grievance is that the learned Subordinate Judge while deciding his application did not refer to that prayer of his. Though the copy of the application for the issue of commission is not filed with the records of this case, but the counsel for the respondent read the prayer made on behalf of the petitioner in the application the prayer in the application was only for the examination of the petitioner as a witness. Since the other ground which is contained in the body of the application was not included in the prayer and was not stressed before the Subordinate Court at the time of arguments, it shows that the petitioner was not interested to urge it or she had given that up.