UTTAM SINGH Vs. PASH SINGH

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 12.1.1987 passed by the learned trial Court whereby it has declined to grant permission to the plaintiff-petitioner to examine his brother Kishan Singh, a proforma defendant in the suit, on commission on the ground that he is residing in Malaysia.

(2.) I have heard the learned counsel for the parties. I am of the considered view that the learned trial Court erred in the exercise of its jurisdiction is disallowing the prayer of the petitioner. The claim of the petitioner in the suit is for cancellation of the sale deed dated 27.12.1982 in respect of the disputed land which according to him is owned by him and his brother Kishan Singh respondent No. 5 herein. He contended that Kishan Singh resides in Malaysia and he never came to India. One of the contentions raised by him in the suit is that there was no occasion for Kishan Singh to agree to the sale or to execute the sale deed. The learned trial Court has observed that Kishan Singh being a proforma defendant to the suit ought to come from Malaysia and appear as a witness if he chooses to support the case of the plaintiff. This in my view is not the correct approach.

(3.) CONSEQUENTLY , I allow this revision petition and set aside the order dated 12.1.1987 passed by the learned trial Court and direct it to have Kishan Singh respondent No. 5 examined on commission by issuance of interrogatories as prayed for by the petitioner in his application. In the circumstances of the case, however, parties are left to bear their own costs.