M/S. NORTHERN INDIA CATERERS PVT. LTD., CALCUTTA Vs. THE CHIEF COMMISSIONER, CHANDIGARH ADMINISTRATION AND ORS.

JUDGEMENT

(1.) The petitioner filed a suit for declaration challenging the legality of the order of the Eastate Officer, respondent No. 2, dated May 14, 1969, holding the plaintiffs in unauthorised occupation of the Mount View Hotel in Chandigarh on various grounds. In addition, it was also prayed that an agreement to sell the said hotel had been entered into by the respondents on behalf of the Union Territory, Chandigarh Administration (hereinafter called the Administration) and that the petitioner was continuing in its possession in part performance of the same. The Administration in the written statement contested the suit on all grounds inter alia contending that the alleged agreement of sale had not been completed as the petitioner did not agree to the terms and conditions. After framing of the issues, the petitioner was called upon to adduce evidence by the order of the Subordinate Judge dated January 5, 1977. It was ordered that the witnesses be summoned through registered post and the summons to out station witnesses be taken dasti. On January 29, 1977, as many as 5 witnesses were examined. The petitioner had put in a list of 18 witnesses out of which according to the application submitted on January 18, 1977, six witnesses were sought to be examined on Commission and with interrogatories. A perusal of the impugned order dated January 29, 1977, shows that the request of the petitioner to examine Mr. Nirwan Kumar, resident of Srinagar, Mr. O.P. Puri, resident of Calcutta, Mr. S.P. Roy, resident of Calcutta, Mr. M.S. Oberoy, resident of Calcutta and Mr. B.R. Patel, resident of Bombay, on commission was declined. The prayer to summon Miss Dunga and Mr. Wadia was also declined because according to the report, they had gone out of India. Regarding K.P. Sahni and Parmar, witnesses, it was observed that dasti summonses were not taken by the petitioner in accordance with the order and they had not been served. In view of this, it was ordered that the petitioner should produce them on his own responsibility and further that the petitioner could also take dasti summons. Regarding Sant Ram, Sohan Singh and Gurbax Singh, witnesses as they had not been served, it was ordered that they be summoned again. The learned counsel for the petitioner has challenged the legality of the order to the extent that the examination of six witnesses on commission was refused and with regard to two witnesses, the petitioner had been ordered to produce them at his own responsibility and if so desired to serve them by taking dasti summons.

(2.) Regarding Shri Nirwan Kumar, resident of Sringar, his examination on commission was declined as he was Manager of the petitioner in the Hotel at Chandigarh from 1965 to 1969 and he was required to prove the correspondence which transpired between the petitioner and the respondents and this correspondence, which was placed on the record by the petitioner, had been admitted by the respondents. The evidence of Shri O.P. Puri was required by the petitioner for the purpose of proving the oral understanding between the parties regarding the continuation of the lease after the expiry of the period of the lease which had commenced in 1953. According to the Subordinate Judge, the entire correspondence between the parties placed by the petitioner having been admitted by the respondents, his evidence will not serve any purpose. Shri M.S. Oberoy and Shri S.P. Roy, are the Chairman and the Secretary to the petitioner and as such were Principal Officer of the petitioner company. Under these circumstances according to the trial Subordinate Judge, the petitioner had no right to claim their examination on Commission.

(3.) So far as Shri B.R. Patel is concerned, the case of the petitioner in the plaint was that the petitioner had written one letter on August 10, 1968, to him as Secretary, Government of India, in the Department of Works and Housing. A copy of this letter was produced on the record and the same was admitted by the respondents. According to the same, the petitioner had made an offer to purchase the Hotel on the terms mentioned in that latter. Reference was also made therein to the discussion held by the petitioner with Mr. Patel. The contents of this letter having been admitted by the respondents and Mr. Patel having retired from service, the learned Subordinate Judge came to the conclusion that his evidence was also not necessary. I have closely perused the reasoning of the Subordinate Judge in declining the request of the petitioner to examine these six witnesses residing in far off places in various provinces of India on commission. I am in agreement with the conclusion arrived at and do not consider that the discretion was not exercised by the trial Court properly. In any case, it is not a fit case in which the decision of the Court below in this respect can be interferred with in revision.