In the suit, filed by Durga Charan Saha Roy, against Nilambar Roy in the Court of Munsiff at Belonia, an application was made, on 9-6-1966 for examination of the plaintiff on commission since he was much too ill to make statement by personal appearance in Court. That application was granted and the commission issued. The commissioner recorded the statement of the plaintiff on 21-8-1966. When the case was taken up in the Court on the next day, 22-8-1966, for examination of plaintiff's other witnesses, the defendant moved an application praying that the evidence of the plaintiff recorded on commission should not be read as evidence in the case because the plaintiff was in good health and so could appear in Court for making his deposition. The defendant also objected to the examination of the plaintiff's two witnesses, who were in attendance, on the ground that list of the witnesses whom the plaintiff wanted to examine had not been filed in the Court in time. 2. The plaintiff vigorously opposed both the objections raised by the defendant. 3. The trial Court rejected the first objection with the observation that the evidence recorded on commission could not be "rejected" only for the reasons that "the plaintiff may have stated that he has now recovered from his illness". The other objection of the defendant was also disallowed on the score that the plaintiff is not bound in law to furnish the list of witnesses to the Court earlier than the date fixed for recording evidence on his behalf. 4. The defendant having felt aggrieved with that order of the Munsif has come up in revision to this Court under Section 115 of the Civil Procedure Code. 5. Shri M. R. Choudhury, appearing for the defendant-petitioner, has not pressed the ground pertaining to the nori-submission of list of witnesses by the plaintiff. I think he has adopted the right course. The relevant provision of law Is contained in Rule IA of Or. XVI of the Civil Procedure Code. That rule enacts that where any party to the suit has.
I think he has adopted the right course. The relevant provision of law Is contained in Rule IA of Or. XVI of the Civil Procedure Code. That rule enacts that where any party to the suit has. at any time on or before the day fixed for the hearing of evidence, filed in the Court a list of persons either for giving evidence or for producing documents, the party may, without applying for summons under Rule 1, bring any such person, whose name appears in the list, to give evidence or to produce documents. It is apparent that the rule gives option to the party to submit the list of witnesses either on or before the day fixed for the hearing of his evidence. Since the hearing of evidence of the plaintiff of the case in hand had to begin on 22-8-1966, he could well submit the list of witnesses on that day. There was no obligation on him to put in that list earlier. Therefore, the trial Court was justified in rejecting the contention of the defendant that the plaintiff should not be permitted to examine the two witnesses who had put in appearance in the Court on 22-8-1966. 6. Shri Choudhury was very vehement in canvassing the proposition that the defendant's objection against the evidence of the plaintiff recorded on commission being read in the suit had been unjustifiably turned down. I think his stand is sustainable in law. Rule 7 of Or. XXVI of the Code prescribes that the commission and the return thereto, as also the evidence taken under it, shall form part of the record of the suit, but subject to the provisions contained in Rule 8. Rule 8 may usefully be reproduced here.
I think his stand is sustainable in law. Rule 7 of Or. XXVI of the Code prescribes that the commission and the return thereto, as also the evidence taken under it, shall form part of the record of the suit, but subject to the provisions contained in Rule 8. Rule 8 may usefully be reproduced here. It runs as under: "Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless- (a) the person who gave the evidence Is beyond the jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a person in the service of Government who cannot, in the opinion of the Court, attend without detriment to the public service, or (b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a), and authorises the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same." The substance of the rule is that evidence taken on commission shall not be read as evidence in the suit without the consent of the party against whom it is meant to be utilised, unless some one of the circumstances mentioned in clause (a) is proved to exist, or the Court in exercise of its discretion vested In it by clause (b) authorises the evidence being read in the suit on dispensing with the proof of any such circumstance despite the fact that the cause for taking such evidence by commission has ceased to exist at the time of reading the same. If the Court, however, exercises the discretion under clause (b), that fact must appear on the record in the shape of a specific order, which should preferably contain the reasons which have weighed with the Court. If all these essential precautions are observed, the superior Court shall not be confronted with any problem if the aggrieved party happens to challenge the discretion exercised by the trial Court.
If all these essential precautions are observed, the superior Court shall not be confronted with any problem if the aggrieved party happens to challenge the discretion exercised by the trial Court. The point that requires emphasis Is that the statement taken on commission does not ipso facto form part of the record and be read as evidence in the case, as appears to have been assumed by the Munsiff in the present case, and this point is clearly brought out by the specific words "subject to the provisions of the next following rule" put in parenthesis in Rule 7 of Or. XXVI. It appears to be the anxiety of the legislature that unless some one of the disabilities or peculiar circumstances, which govern the issuing of a commission for examination of a witness continues to obtain until the stage for reading of his evidence is reached in the suit, or the witness whose statement had been recorded on commission has died by that stage, the witness must be brought to the Court for personal statement to enable the Presiding Officer to judge his veracity in the back-ground of his conduct and demeanour while in the, witness-box. Therein lies the philosophy behind and the reason or justification for enacting Rule 8. It should, therefore, be only in exceptional cases that the Court exercise its discretion under clause (b) of Rule 8 if only because every conscientious and devoted-to-the-job presiding officer of the Court would be anxious to have a look at the witness whose statement may influence his judgment one way or the other. 7. Coming now to the case in hand it looks abundantly clear that while rejecting the prayer of the defendant the Court did not have the provisions of Rule 8 before its mind, and that it laboured under the impression that the evidence recorded on commission can form part of the record and be read in the case without anything more. This conclusion can be easily spelled out from the observation of the Court, "I do not think that although the plaintiff may have stated that he has now recovered from his illness, the deposition (recorded on commission) can be rejected on that ground only." If the attention of the Court had been directed to R. 8 (b) it must have expressed itself quite differently while overruling the objection raised by the defendant.
Shri B. B. Gupta, appearing for the plaintiff-respondent, wanted this Court to assume that the trial Court had dismissed the objection of the defendant in exercise of its discretion vested in it by Rule 8 (b). However, there is nothing on the record to lend weight to that contention. Hence, the inescapable conclusion that I am driven to is that the trial Court had rejected the objection on wrong assumption and so a case for interference in revision is made out. The Court appears to have acted in the exercise of its jurisdiction both illegally and with material irregularity, to use the words of Section 115 of the Code under which the revision petition has been filed, since it failed to take into consideration the provisions of Rule 8 (b) while making the impugned order. 8. As a result, I allow the revision petition to the extent that the order, overruling the objection of the defendant in regard to the evidence of the plaintiff recorded on commission, is quashed. I remit the case to the trial Court for re-decision of that objection of the defendant in the light of the provisions of Rules 7 and 8 of Or. XXVI and of the observations made above. 9. In view of partial success of the parties, I leave them to bear their own costs in this Court. Advocates fee Rs. 32/- Revision partly allowed.