RAMALINGA IYAR Vs. SANKARANARAYANA AYYAR

JUDGEMENT

(1.) This is a petition to revise the order of the District Munsif of Dharapuram in I. A. No. 338 of 1928 in O.S. No. 64 of 1928 to examine a witness, on commission. It is not denied that the witness lives beyond the jurisdiction of the District Munsif's Court and beyond the limits under which he is compellable to attend and give evidence in person under Order 16, Rule 19, Civil P.C. The order therefore, is one passed under Order 26, Rule 4, though the reason for passing the order is the alleged ill-health of the witness. The petitioner claims some property as having come to him from his father; the defendant claims it as having bought it from the witness in question. The latter is an aged High Court Vakil who has retired from practice. The plaintiff has summoned him as his witness to show, 1 understand, that the sale-deed was executed in the name of the defendant for plaintiff's benefit. The witness certainly appears to be an important witness in the case. The question is whether the order of the District Munsif is one that can or ought to be revised. This is not a case where the reasons on which the Court has acted, if they were true, would not be amongst the grounds under which a commission could be issued under this order. The cases quoted, Somasundaram Chettiar V/s. Manicka Vasaka Desika Gnana Sammanda Pandarasannadhi [1908] 31 Mad. 60 and Sreenivasa V/s. Ranga , are cases where the reasons given, even if true, did not authorise a commission being issued. In Somasundaram Chettiar V/s. Manicka Vasaka Desika Gnana Sammanda Pandarasannadhi [1908] 31 Mad. 60, a commission was issued because the witness represented that he personally knew nothing of the matters connected with the case, that his evidence was unnecessary, that it had not been the practice for him to appear before the Court and give evidence and that he had been examined on commission in several cases by this and other Courts.

(2.) In , the Court granted the commission as it simply found that the witnesses were old. In these cases, there was evidently an order without jurisdiction which could be interfered with in revision. In the present case, the application for commission was made on the ground that the witness was too ill to go to Court and it is clear that the order was granted on this ground. What is sought to be made out is that the medical certificate and the evidence before the Court did not justify the Court's conclusion. I am therefore doubtful whether under such circumstances a revision petition will lie at all.

(3.) However, I will deal with the medical certificate and with the order. I find it difficult to accept the contention of the petitioner's advocate that the power of the Court to issue commissions is more restricted under Order 26, Rule 4, than it is under Order 26, Rule 1. Prima facie as the text stands, it is Rule 1 which obviously introduces restrictions which are not found under Rule 4 (1) (a), and most of the cases which the learned advocate for the petitioner cited before me to support his view have been cases where the plaintiff himself asked to be examined on commission. That is obviously a different matter. The plaintiff having his choice of venue is clearly not entitled, except for very strong reasons, to ask that he should be examined on commission outside the jurisdiction of the trying Court. The argument for the petitioner on this point as I understood it, was that, as the party has no legal right that summons should be issued to his witnesses if they are not compellable to give evidence, therefore the Court should be even more loath to grant commissions on such applications than it would be if the witness lived within its jurisdiction. I have not found such a doctrine laid down anywhere and it does not appear to me to be quite reasonable. At the same time it is clear that the Court, in allowing a witness who is capable of appearing for being examined in Court to be examined on commission is depriving the opposite party of an important privilege and may perhaps be said to be acting without jurisdiction.