ANANDA CHANDRA PRODHAN Vs. SUK CHAND PRODHAN

JUDGEMENT

(1.) We are invited in this Rule to revise an order passed by the Subordinate Judge of 24- Parganas directing the examination of the plaintiffs witness, Brojo Mohan Tewari, on commission at Geonkhali in the District of Midnapur. It appears that this order was issued in connexion with a suit between two brothers, the plaintiff and the defendant, in respect of the ancestral property. The plaintiff filed an application before the Court below to examine this witness who lives in the village of Nanduiram, which is said to be situated at a distance of 20 miles from Geonkhali, the mode of conveyance between the place being over land and water. The application was granted; but on the defendants objecting to the order the Court fixed Diamond Harbour as the place where the witness should be brought for examination. On further representation being made the Court appointed Geonkhali as the place whore the witness should be brought for examination. The plaintiff objected to this order on the ground that the witness was not able to risk a journey to Geonkhali, but the Court refused to modify its previous order. The present, application was made against that order and this Rule was issued.

(2.) The learned vakil for the opposite party argues that this Court has no power, either under Section 115, Civil P.C., or Section 107 of the Government of India Act, to revise the order now under consideration, as it was passed in the exercise of the discretionary power vested in the Court below. No doubt it is a strong point in favour of the defendant. The order is an interlocutory order and is passed, as the learned vakil for the opposite party contends, in the exercise of the discretion which the trial Court had under Order 26, Rule 4. But we do not think that our power of interference or superintendence is limited by the provisions of the statutes. This Court has consistently held the view: differing from the view taken by the Allahabad High Court that an interlocutory order like the present is one which can be revised by the High Court in the exercise of its revisional jurisdiction. But it has been held at the same time that this Court will not exercise its revisional jurisdiction except on rare occasions where the refusal of such jurisdiction would be tantamount to a denial of justice. Recently this Court has interfered with a number of interlocutory orders. See the cases of Kumar Sarat Kumar Ray V/s. Ram Chandra Chatterji A.I.R. 1922 Cal. 42, and Yatindra Nath V/s. Hari Charan [1915] 20 C.L.J. 426. In the latter case all the cases on the point have been reviewed. The same view has been taken in the case of Somasundaram Chettiar V/s. Manickavasaka Desika Gnanasambanda Pandara Sannadhi [1908] 31 Mad. 60. The result of an examination of all these authorities is that there is nothing in law to prevent us from interfering with interlocutory orders of this nature, if we think that the order complained of is one which is calculated to do irreparable injury to a party in a suit.

(3.) Now turning to the facts of this case. we find that it is alleged by the plaintiff that this witness Brojo Mohan Tewari is a man of 80 years old. There is a medical certificate to the effect that he is weak and debilitated. This is not contradicted by the opposite party, and we take it that the proceedings of the Court, below proceeded on this assumption. It is further stated by the plaintiff that he attempted to bring this witness to Geonkhali for she purpose of his examination, but he refused to go there at the risk of his life. The witness lives beyond the local Hants of the jurisdiction of the Court at Alipore and the Court has thought fit to issue a commission for his examination. The question is, was it right to fix the place where this witness could be brought for examination? There is nothing in the Code which authorizes a Court to do so, nor, of course, is there anything restricting its power in that direction. But in the present case we are of opinion that the order passed by the Court; was tent-amount to refusing the application for examination of the witness. This rights cause serious injury to the plaintiff. If for instance the evidence of this witness is not available, and trial of the suit is proceeded with and the suit is decided against the plaintiff and on appeal the appellate Court thinks that the evidence of this witness should have been taken on commission at his house, the result will be a remand, a further hearing and further loss of time and money. It is possible that by the time the remand order is made the witness may die or that his evidence may not be procured. The learned Subordinate Judge has not stated any reason why he considered Geonkhali to be the most suitable place for his examination. "We are told that in order to reach Geonkhali the witness has first to travel some miles by road which can only be alone in a palanquin and then he has to go by boat in order to reach his destination. We are not sure, if the witness is in a fit condition to undertake this journey and ha has certainly refused to go to Gaonkhali. In the particular circumstances of this case we think that in the exercise of our revisional jurisdiction we should set aside the order of the Court below directing the examination of this witness at Geonkhali and direct that the witness be examined in his house. If the learned Judge of the Court below thinks that it will not be proper to have the examination of the witness viva voce on the petition of any of the parties he may direct an examination by interrogatories.