LACHHMI DEVI Vs. CHANDRAKALA SARAOGI

JUDGEMENT

(1.) THIS is an application in revision against an order granting the prayer of the Opposite Party No. 1 for issue of a commission to examine herself and her witnesses at a place outside the jurisdiction of the Court.

(2.) IT appears that the petitioner Lachhmi Devi filed an application on the 18th of November, 1971, for being appointed the guardian of a minor girl Smita Agrawal under Section 10 of the Guardians and Wards Act before the District Judge of Purnea. IT is said that the aforesaid girl is the only living person in the branch of one Krishna Kumar Das son of Braja Bihari Das. Lachhmi Devi is the wife of Nirmal Kumar Das, brother of Krishna Kumar Das. This application was allowed on the 18th of January, 1972 and the petitioner was appointed guardian. IT appears next that on the 3rd of May, 1972, one Chandrakala Saraogi (Opposite Party No. 1), who claims to be the maternal grand-mother of the aforesaid girl filed an application for cancellation of the order appointing Lachhmi Devi as the guardian. The case of Lachhmi Devi in this respect appears to be that Chandrakala Saraogi is the step-mother of the mother of the aforesaid girl. On this basis of the claim made the aforesaid application for cancellation was filed in the miscellaneous case (No. 92 of 1971). During the course of the proceeding Chandrakala Saraogi filed an application to the effect that she proposed to examine certain witnesses who resided at Calcutta and thus outside the jurisdiction of the Court. She herself also is said to be residing at Calcutta and, therefore, a prayer was made that Chandrakala Saraogi and the witnesses named in the application be examined at Calcutta by a commissioner appointed by the Court. By order dated the 22nd of July, 1972 the learned District Judge granted the prayer. Hence this application.

(3.) WITH regard to the first point learned counsel has urged that there is no allegation to the effect that the opposite party or the other female witnesses mentioned in the application are pardanashin ladies and, therefore, there could not have been an order under Section 132 of the Code. It appears from the petition filed by the opposite party for the issue of commission (Annexure I to the present application) that the prayer of the opposite party has not been founded on this score. The question of application of Section 132 of the Code does not, therefore, arise. In this connection learned counsel placed reliance on a decision of a learned Single Judge of this Court in Bahuria Ram-kali Kuer v. Chhathoo Singh, 1961 BLJR 322 = (AIR 1961 Pat 210). Reliance was placed on an observation of the learned Judge to the effect that the difference between the examination of a witness on commission and a viva voce examination in open court is so greatly to the disadvantage of the opposite party that the Court should very jealously enquire, in every case, into the reason for the commission. The observation aforesaid was made in the circumstances of the case which really turned on the question whether the person for whose examination commission had been issued was a pardanashin lady or not. It is not in my view one of general application for the simple reason that the Code provides elsewhere when a commission has to be issued. It has also been held in other cases that the mere fact that the demeanour of a witness cannot be noticed by the Court itself in cases of examination on commission is not by itself a good ground for refusing a prayer for issue of commission: Vide AIR 1934 Mad 399, Rajagopalu Pillai v. Kasiviswanathan Chct-tiar. There is, however, no denying the fact that it may be one of the considerations involved.