VALI ASMAL Vs. AUMALJI

JUDGEMENT

(1.) This is an application under the Civil Extraordinary Jurisdiction of this Court. The petitioner was be defendant No. 1 in Suit No. 240 of 1919 on the file of the Court of the Join second Class Subordinate Judge at Broach. the had summoned Rao Bahadur Malji, a pleader, to give evidence with regard to a certain purshis which had been put in another suit, and had paid the usual subsistence allowance of Re. 1. In the end there was no necessity for the Rao Bahadur to give evidence as the parties to the suit admitted the mistake in the purshis. On the day on which the Rao Bahadur had been summoned to appear, he was actually appearing as a pleader in another suit in the same Court building, and had not, therefore, incurred any extra travelling expenses in going to the Court to give evidence. However, when the case was finished the Rao Bahadur put in a bill for Rs. 30, and this was allowed by the Subordinate Judge as the Rao Bahadur was called to- depose on facts which he came to know in his professional capacity as a pleader.

(2.) Now the only jurisdiction which the Court had was to allow a certain payment to the Rao Bahadur on account of his being called as a witness for subsistence and travelling allowance under Clause 55 of the Civil Circulars That clause provides for the travelling and other expenses which ought to be paid in the case of various witnesses according to various rates. Sub-clause (e) states that peculiar cases are to be dealt with according to their own merits, and at the discretion of tha Court from which subsistence money or travelling allowance is demanded. It is, therefore, open to a witness to show to the Court that none of the rates allowed in Sub-clauses (a), (b), (c) and (d) apply to his case, but that there are peculiar circumstances which entitle him to demand subsistence money or travelling allowance at a higher rate. The learned Judge appeared to think that a special fee under Sub-clause (e) of Clause 55 of the Civil Circulars 1921 should be allowed, not because extra expenses had been incurred by the witness, but because he was entitled to something more on account of his status. The was a wrong view to take, because the law does note provide for any special fee being paid to witnesses in the District Courts on account of their status. It indifferent if a witness is called as an expert to give evidence in matters in which he is held to be an expert. This is not a case in which the Rao Bahadur was called to give evidence on a question/ of law as an expert. He was merely called to give evidence as to what had occurred in a previous suit in which he engaged as a pleader. According to the statement made by the Rao Bahadur before the Subordinate Judge, it appeals that of the Courts had considered that such special fees could be paid ordinary witnesses, and if that has been the practice in the District Courts, then I can only say, that there is no warrant for it in law. If professional gentlemen consider that provision should ha made by the law to compensate them for the loss of time when they are called to give evidence in Courts, then they should agitate for an amendment of the law. But the Courts have no jurisdiction to set up a practice by which litigants are directed to make payments to witnesses which the law does not authorize. The order allowing Us. 30 to the Rao Bahadur must, therefore, be set aside.

(3.) It has been argued on his behalf that although the applicant has succeeded, no order as to costs should be made on the ground, first, that the respondent was not a party to the proceeding; secondly, that the demand made was only according to what he considered to be the recognized practice. But I could have understood the argument better if a preliminary point had been taken by the respondent that he was not a proper party to the Rule, and that the Rule should have been taken out against the opposite party in the suit. Then the question of procedure would have been considered, and if the respondent is not a proper party, of course the Rule would have been discharged. But that is a preliminary point, and it was practically waived by the respondent when he entered upon his arguments of the Rule on the merits.