A R P R VISWANATHAN CHETTY Vs. MNMSOMASUNDARAM CHETTY ALIAS NAGAPPA CHETTY BY HIS AUTHORISED AGENT VARMKARUPPAN CHETTY

JUDGEMENT

(1.) In this case the district Munsif has refused to issue a commission to examine the 2nd defendant as his own witness, and the revision is against that order. The learned Munsif dismissed the petitioner's petition rather summarily without noticing the importance of the fact that the defendant was the person applying and without his attention having been drawn to the cases which show in what manner a Court should deal with an application of a defendant to examine himself as a witness on commission as distinguished from an application by a plaintiff. A reference to the case Rose V/s. Woodford (1894) 1 Ch. 38 and to the case Sarat V/s. Ram (1921) 35. CLJ 77 will show how a defendants application should be dealt with. In this case a defendant has been a resident of Rangoon with his family for many years. He was served with summons there. The plaintiff himself was a resident of Rangoon and was examined on commission himself there. In these circumstances the defendant should have been allowed to be examined on commission. The watching of his demeanour which the lower Court refers to in support of its order is not a sufficiently strong ground to justify the dragging of the defendant all the way from Rangoon to Ramnad. I would therefore set aside the order of the Munsif and direct him to issue a commission to examine the defendant in Rangoon as prayed by him.

(2.) It was argued that this was not a proper case for intervention in revision and reliance was placed on the observations of their Lordships in page 799 of the case Balakrishna Udayar v. Vasudeva Aiyar (1917) ILR 40 M 793 : 33 MLJ 69 (PC).

(3.) Their Lordships recognise irregular exercise of jurisdiction as a ground for interference as the section also says. I think this is a case of such irregular exercise of the lower Court's powers in examining witnesses. In refusing to examine defendant on commission in the circumstances of this case the Court is acting with material irregularity as it might lead to his evidence being lost to the defendant altogether. The objection that it is not open to this Court to act in revision is therefore overruled.