HEMANT GOEL Vs. DAYAWANTI

JUDGEMENT

(1.) ON the request made on behalf of learned counsel appearing for the petitioner, the name of respondent No. 4 is deleted from the array of respondents. The petitioner challenges the order dated 19.9.2011 passed by the learned trial Court rejecting his application under Order 26 rule 2 of the Code of Civil Procedure praying for examination of witnesses on commission and order dated 10.10.2011 closing the evidence of the petitioner. I need not go into the details of the entire case. The first point is that by way of the application which is moved under Order 26 rule 2 of the Code of Civil Procedure the petitioner sought the issuance of the commission for the examination of the witnesses as mentioned in Annexure P -1. All these witnesses were residents of Delhi. The reason stated by the petitioner was that these witnesses are permanently working/residing there and despite best efforts made by the petitioner, he could not procure their presence in Court. In these circumstances, a prayer was that as these witnesses are material, he be allowed to examine them on commission for which purpose the petitioner will bear the entire expenses. Thereafter, the case was taken up by the Tribunal on 10.10.2011, on which date the evidence of the petitioner was closed. It is these two orders which the petitioner challenges in this petition.

(2.) AT the outset, I observe that two orders cannot become the subject matter of one petition under Article 227 of the Constitution of India as each order itself furnishes a separate foundation and independent cause for challenge. However, in order not to prolong the proceedings, I am considering both these orders in this petition.

(3.) SO far as the relevance of the evidence to be recorded on commission is concerned, as to whether the witnesses are material or not it has to be considered at the time when the evidence itself is evaluated by the Court. In these circumstances, I find that the order which has been passed by the learned Tribunal is against law and it is accordingly quashed and set aside. Consequently, the order dated 10.10.2011 is also quashed and set aside as it seems that this order has been passed on hyper technical grounds only for resisting the number of opportunities granted to the petitioner to produce the evidence. The Court should have been alive to the fact that it is usual that witnesses who reside beyond the territorial jurisdiction of the Court, do not usually attend Court proceedings, their evidence can be recorded on Commission under Order 26 rule 4 of the Code of Civil Procedure. I am not going into that aspect of the matter in detail.