ANOORA Vs. BABU SAGARMAL

JUDGEMENT

(1.) Defendant No. 1 is the petitioner in this case. Opposite Party No. 1 filed a suit for recovery of a certain amount of money based on a handnote against the petitioner and Opposite Party No.2. The handnote is said to have been executed by the deceased husband of the petitioner. The defence of the petitioner is that the handnote in question is a forged document. This handnote was sent to a Handwriting Expert at Simla, who gave his opinion that it was a forged document. The petitioner, therefore, made an application for examination of the said expert at Simla on commission through the Simla court. The plaintiff-opposite party No. 1 objected to the issue of commission and made a prayer that, in case a commission was issued, it should be issued on payment of cost to the plaintiff for taking his lawyers to Simla. The learned Munsif allowed the prayer of the Petitioner for examination of the expert on commission by the Simla court, but directed her to deposit a sum of Rs. 400 as bring the cost of the plaintiff for taking his lawyers to Simla. Being aggrieved by this portion of the order of the Court below, the present application has been filed by the defendant No. 1.

(2.) The law relating to issue of commission is provided in Section 75 of the Code of Civil Procedure, according to which, subject to such conditions and limitations as may be prescribed, the court may issue a commission to examine any person. The conditions and limitations contemplated by the above section are to be found in Order 26 of the Code of Civil Procedure. Rules 1 and 4 of that Order make provisions for different types of cases in which witnesses have to be examined on commission. Rule 15 of the said Order lays down that, before issuing any commission under this order, the court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be within a time to be fixed, paid hate, court by the party at whose instance or for whose benefit the commission is issued. It is contended on behalf of the plaintiff opposite party that, under the provisions of this rule, the court lad ample jurisdiction to pass an order directing the petitioner to deposit the costs of the plaintiff to be incurred by him in attending the examination of the witness on commission, and it is submitted that the order passed by the court below was perfectly justified and within its jurisdiction. On behalf of the petitioner, however, it is urged that the petitioner had a right to have the Simla expert examined on commission, and, as such, the court had no jurisdiction to impose any condition on the petitioner in allowing her prayer for issue of & commission. It is also contended on behalf of the petitioner that the expenses of the commission required to be deposited under the above Rule 15 of Order 26 do not include the cost of the adversary and are limited to the actual cost incurred by the Commissioner together with such other incidental cost which may be necessary for the Commissioner to spend for the execution of the commission. In my opinion the arguments put forward on behalf of the petitioner are well founded and must prevail.

(3.) The handnote in question was examined by an expert of Simla. No objection was raised on behalf of the plaintiff for its examination by an expert of a distant place. The report of the expert appears to be in favour of the petitioner, and, in order to put it in evidence, it is necessary to get it proved by examination of the said expert. The expert is residing admittedly at a distance of more than 200 miles from the court where he should be examined. Order 16, Rule 19, of the Code of Civil Procedure provides that no one shall be ordered to attend in person to give evidence, if he resides more than 200 miles away from the court-house. Thus, in order to examine the expert-witness residing at Simla, his attendance could not be compelled to be procured and the only way in which his evidence could be placed on record was by issue of a commission, and the party desiring to examine him was entitled to have its prayer allowed as a matter of right. The court had no option to refuse the prayer for examining such a witness on commission. It was, therefore, not possible for the court to put the party, desiring to examine the witness on commission, to any term which is not specifically provided elsewhere in the Code of Civil Procedure. The provision for putting such a party to any term is laid down, as already stated, in Order 26, Rule 15, of the Code of Civil Procedure, according to which the court, before issuing a commission, could compel the petitioner to deposit any reasonable amount for the expenses of the commission. Up to this extent, there appears to be no dispute between the parties. But the real controversy between them is that while according to the petitioner the expression "expenses of the commission" means only such expenses as are necessary for the issue of the commission to the commissioner, including such incidental cost which the commissioner may require for executing the commission, according to the plaintiff opposite party it also includes the cost as may be fixed by the court, which the adversary has to incur in attending the commission work. This, the real controversy between the parties rests on this interpretation of the expression "expenses of the commission".