Lachhmi Devi v. Chandrakala Saraogi — 1972 DIGILAW 222 (PAT)

Judgment Madan Mohan Prasad, J. 1. This is an application in revision against an order granting the prayer of the Opposite Party No. 1 for issue of a commission to examine herself and her witnesses at a place outside the jurisdiction of the Court. 2. It appears that the petitioner Lachhmi Devi filed an application on the 18th of November, 1971, for being appointed the guardian of a minor girl Smita Agrawal under Sec.10 of the Guardians and Wards Act before the District Judge of Purnea. It is said that the aforesaid girl is the only living person in the branch of one Krishna Kumar Das son of Braja Bihari Das. Lachhmi Devi is the wife of Nirmal Kumar Das, brother of Krishna Kumar Das. This application was allowed on the 18th of January, 1972 and the petitioner was appointed guardian. It appears next that on the 3rd of May, 1972, one Chandrakala Saraogi (Opposite Party No. 1), who claims to be the maternal grand-mother of the aforesaid girl filed an application for cancellation of the order appointing Lachhmi Devi as the guardian. The case of Lachhmi Devi in this respect appears to be that Chandrakala Saraogi is the step-mother of the mother of the aforesaid girl. On this basis of the claim made the aforesaid application for cancellation was filed in the miscellaneous case (No. 92 of 1971). During the course of the proceeding Chandrakala Saraogi filed an application to the effect that she proposed to examine certain witnesses who resided at Calcutta and thus outside the jurisdiction of the Court. She herself also is said to be residing at Calcutta and, therefore, a prayer was made that Chandrakala Saraogi and the witnesses named in the application be examined at Calcutta by a commissioner appointed by the Court. By order dated the 22nd of July, 1972 the learned District Judge granted the prayer. Hence this application. 3. She herself also is said to be residing at Calcutta and, therefore, a prayer was made that Chandrakala Saraogi and the witnesses named in the application be examined at Calcutta by a commissioner appointed by the Court. By order dated the 22nd of July, 1972 the learned District Judge granted the prayer. Hence this application. 3. Learned counsel for the petitioner has contended firstly that Sec.132 of the Code of Civil Procedure (hereinafter referred to as the Code) has no application to the circumstances of the present case; secondly that Order XVI, Rule 19 of the Code also has no application so far as Chandrakala Saraogi herself is concerned; thirdly that Order XXVI, Rule 4 of the Code will have no application in this case because the witnesses are under the control of the Opposite Party and fourthly that in view of Order XVI, Rule 1 of the Code the Court has no jurisdiction to issue commission in respect of witnesses, its power being limited to issue of summons. He has lastly urged that in case all these points fail, the Court should order that costs shall be paid by the opposite party to the petitioner in respect of the examination of the witnesses on commission. 4. With regard to the first point learned counsel has urged that there is no allegation to the effect that the opposite party or the other female witnesses mentioned in the application are pardanashin ladies and, therefore, there could not have been an order under Sec.132 of the Code. It appears from the petition filed by the opposite party for the issue of commission (Annexure I to the present application) that the prayer of the opposite party has not been founded on this score. The question of application of Sec.132 of the Code does not, therefore, arise. In this connection learned counsel placed reliance on a decision of a learned Single Judge of this Court in Bahuria Ram-kali Kuer v. Chhathoo Singh, 1961 BLJR 322 = ( AIR 1961 Pat 210 ). Reliance was placed on an observation of the learned Judge to the effect that the difference between the examination of a witness on commission and a viva voce examination in open court is so greatly to the disadvantage of the opposite party that the Court should very jealously enquire, in every case, into the reason for the commission. Reliance was placed on an observation of the learned Judge to the effect that the difference between the examination of a witness on commission and a viva voce examination in open court is so greatly to the disadvantage of the opposite party that the Court should very jealously enquire, in every case, into the reason for the commission. The observation aforesaid was made in the circumstances of the case which really turned on the question whether the person for whose examination commission had been issued was a pardanashin lady or not. It is not in my view one of general application for the simple reason that the Code provides elsewhere when a commission has to be issued. It has also been held in other cases that the mere fact that the demeanour of a witness cannot be noticed by the Court itself in cases of examination on commission is not by itself a good ground for refusing a prayer for issue of commission: Vide AIR 1934 Mad 399 , Rajagopalu Pillai V/s. Kasiviswanathan Chct-tiar. There is, however, no denying the fact that it may be one of the considerations involved. 5. Coming now to the second point, there is no doubt that Order XVI, Rule 19 of the Code has no application to the parties concerned because the order aforesaid deals with, summons and attendance of witnesses. So far as its application to the witnesses in the present case is concerned, firstly it has been urged that even though they are residents of Calcutta, it is not a place situated more than two hundred miles from the courthouse at Purnea. Secondly, it has been urged that a proper reading of Clause (b) of Rule 19 means that the place must be five sixths of two hundred miles from the courthouse. With regard to the first contention, it must be ruled out on the ground that in the court below an affidavit was filed by the opposite party stating that Calcutta is situate more than two hundred miles from Purnea. There was no denial of this fact before the learned District Judge nor was any counter-affidavit filed. It is, therefore, not open to learned counsel to raise this question of fact in this Court. With regard to the second contention, with great respect to learned counsel in my view there is no foundation for the argument. There was no denial of this fact before the learned District Judge nor was any counter-affidavit filed. It is, therefore, not open to learned counsel to raise this question of fact in this Court. With regard to the second contention, with great respect to learned counsel in my view there is no foundation for the argument. Rule 19 of Order XVI of the Code is as follows:- - "19. No one shall be ordered to attend in person to give evidence unless he resides-- (a) within the local limits of the Courts ordinary original jurisdiction, or (b) without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the court is situate) less than two hundred miles distance from the courthouse." It is quite obvious that all that Clause (b) of the aforesaid rule lays down is that if the person resides outside the Courts jurisdiction but at a place less than fifty miles, he can be ordered to attend in person and further that where the place is less than two hundred miles from the court-house and there is a railway or steamer communication or other established public conveyance for five-sixths of this distance, he can be ordered to attend in person. In other words, if Calcutta were situate within two hundred miles from Purnea and if it is established that there is a railway or other communication for five-sixths of two hundred miles, the witnesses could be ordered to attend in person for examination in the Court. By no stretch of imagination can it mean that the distance between the court-house and the place of residence of the witnesses must be five-sixths of two hundred miles. The argument has got, therefore, to be brushed aside. 6. Order XVI, Rule 19 of the Code, therefore, does not have any adverse effect in respect of the eight witnesses named by the opposite party in the present case. Commission has been ordered to be issued for their examination at Calcuta. The witnesses reside outside the local limits of the jurisdiction of the Court at Calcutta, a place more than two hundred miles away, and could not be ordered to attend court. Commission has been ordered to be issued for their examination at Calcuta. The witnesses reside outside the local limits of the jurisdiction of the Court at Calcutta, a place more than two hundred miles away, and could not be ordered to attend court. There is thus no good reason for holding that the learned District Judge has committed any error of jurisdiction in this behalf. 7. In this connection learned counsel has raised another argument, namely, that if the witnesses be found to be under the control of the party, no commission should be issued for their examination in spite of the fact that they may have the right not to be ordered to attend court for purpose of their examination. Reliance has been placed in this connection on two decisions (i) in the case of Jaya Shanker Mills (Barsi) Ltd. V/s. Hazi Zakaria Hazi Ebrahim, AIR 1962 Andh Pra 435 and (ii) in the case of G. Subrah-manyam V/s. G. Venkayya, AIR 1963 Andh Pra 429. In the former case after considering some cases on the point the learned Judges observed-- "That shows that even in cases where there is a statutory right it is open to the Court to refuse the same if the witness is under the control of the party and the application is not bona fide." In the latter case another learned Judge of the same Court also observed as follows:-- "A witness residing at a distance of more than 200 miles has a right to be examined on commission, whether his evidence is of any benefit to the party examining him ox not, subject to two conditions: (1) he is not within the control of the party making the application; (2) the application is not an abuse of the process of the Court or actuated by mala fides or fraud." In the present case the only ground which has been put forward for showing that the witnesses are within the control of the party is that in the application (Annexure 1) one witness is the mother of Chandrakala Saraogi, the opposite party, another is her step-daughter, third is her daughter, fourth is her brother, fifth is an elder brother of her husband and sixth is her cousin on the maternal side. It has also been pointed out that four of these witnesses are said to be residing in the same house at Calcutta, two reside in another house and the three other witnesses reside at three other different places. It has to be borne in mind that so far as the present case is concerned, the parties have joined issues on the ques tion whether Chandrakala Saragoi is related as the maternal grand-mother of the girl Smita Agrawal or not and in such a situation close relations are competent witnesses. All that appears therefore from the petition on which reliance has been placed is that most of the witnesses named therein are related to the opposite party. There is hardly anything therein on the basis of which it can be said that these close relations must be deemed to be under the control of the opposite party. In view of the relationship naturally four of the witnesses would reside in the same house. Can it therefore be said merely on that account that the opposite party has control over the remaining witnesses and if that could be said why could it not be said that the witnesses had control over the opposite party herself. It is quite obvious that what is indicated by being within the control of the party is that the witnesses are in such a position that they would say what they would be asked to say. The petitioner did, not produce any material before the court below nor did she even urge by way of rejoinder to this application for issue of commission that the witnesses were under the control of the opposite party. 8 In any case the observations of their Lordships in the two cases of the Andhra Pradcsh High Court can amount merely to a rule of prudence. Surely there is nothing in the Code itself which bars or fetters the jurisdiction of the Court to issue commission even in respect of such witnesses as may be within the control of the party. In order to do justice to the parties and in fairness to them the Court will always take the precaution of not granting to the parties opportunity of fabricating evidence. In order to do justice to the parties and in fairness to them the Court will always take the precaution of not granting to the parties opportunity of fabricating evidence. That does not, however, mean that in any case where there appears some suspicion of a witness being within the control of the party, the Court has no jurisdiction at all to issue commission. With very great respect I am not prepared to agree with that view, if that be so. In my view all that their Lordships of the Andhra Pradesh High Court meant to lay down was merely a rule of prudence and not a rule of law. It may also be mentioned that the other condition mentioned by the learned Judges is one of universal application and is fundamental in its nature. Where an application is an abuse of the process of the Court or actuated by mala fides or fraud, surely that application has to be refused even though a person may have a statutory right in respect thereof. In the present case nothing has been shown as to why the prayer of the opposite party should be considered to be mala fide. 9. On the question of the bona fide of the opposite party it has been stated that Chandrakala Saraogi had filed an application for being appointed as guardian of the girl as far back as in April, 1971 in the Courts at Calcutta and the notices thereof had been sent to Purnea to be served on the petitioner Lachhmi Devi in November, 1971. This was, however, returned unserved by the peon on the ground that the addressee had gone out of Purnea and it is said that having come to know of the application by Chandrakala Saragoi, an application was filed on the 18th of November, 1971, by Lachhmi Devi herself for appointment as guardian of the girl. It is said that the opposite party had no notice thereof and when she learnt about the grant of the prayer, she came and filed the present application for cancellation. It is said further that although she is in the position, apparently of an applicant she had no option to choose the forum of the present application and it is not on her own that she filed it in the Court at Purnea. It is said further that although she is in the position, apparently of an applicant she had no option to choose the forum of the present application and it is not on her own that she filed it in the Court at Purnea. She was forced by the circumstances aforesaid to file the application before the District Judge who had granted the prayer of Lachhmi Devi and, therefore, her own prayer for her examination at Calcutta itself ought not to be refused on the ground that she had chosen her own forum. 10. That brings me to the question whether the order allowing issue of commission for examination of the opposite party herself is proper. Learned counsel has placed reliance on several cases reported in AIR 1926 Pat 277 (Fariduddin Ahmad V/s. Abdul Wahab), AIR 1935 Pat 220 (Babu) Gulab Rai Ghutghutia v. (Babu) Mahendra Nath Sreemani and AIR 1922 Cal 42 (Kumar Sarat Kumar Ray V/s. Ram Chandra Chatter-jee). In Fariduddins case the question turned round the issue of a commission for examination of a party to the suit. It appears that the opposite party of that case resided at Patna, but had got an appointment at Dacca and, therefore, had gone there. The argument was that it was irregular to issue a commission for the examination of the plaintiff who had a choice of forum. In that case also the petitioner had been appointed a guardian of a girl before her marriage and a petition was filed by the opposite party who was then living at Patna for the removal of the petitioner of that case from guardianship and for his appointment in his place It was. therefore, said by the learned Judge that in that case the opposite party had no choice of forum and in that circumstance the order directing issue of commission for his examination was upheld. The decision of this case in my view supports the opposite party more than it supports the petitioners contention. In the case of Gulab Rai also there was a prayer for examination of the plaintiff opposite party to be examined on commission at Calcutta which had been allowed by the trial Court. The argument was addressed that the plaintiff who had the right to choose his forum should not be allowed to be examined on commission at a different place. The argument was addressed that the plaintiff who had the right to choose his forum should not be allowed to be examined on commission at a different place. The learned Judge accepted the proposition that under a rule of prudence a distinction has to be drawn between the plaintiff who has the right to choose his own forum and the defendant who has no such right in respect of the question of issue of commission for examination of the party. Reliance was placed on an earlier case of this Court reported in AIR 1925 Pat 125 (Muhammad Akbar Ali Khan v. Herbert Francis). But in that case on account of another reason, namely, that it was risky to compel the plaintiff to come to Jamtara, the order of commission was upheld. In case of Kumar Sarat Kumar Ray an application was made by a defendant who resided outside the jurisdiction of the Court and it was held that his case was not to be regarded with the same strictness as the case of the plaintiff who had instituted his suit in the forum of his choice though he resided beyond the jurisdiction of that Court. In this case the trial Court had refused the prayer, but the learned Judges of the High Court allowed the prayer and directed commission to be issued. None of these cases in my view is of any help to the petitioner. Broadly speaking the prayer made by a plaintiff for his examination on commission (sic). As I have said earlier, in the circumstances of the present case, the opposite party does not stand in the shoes of the plaintiff inasmuch as she had no option to choose her forum and it is that which is the determining test, upon the cases referred to above, for the purpose of granting or refusing issue of commission. It cannot, therefore, be said that the discretion exercised by the learned District Judge in favour of the opposite party is erroneous or perverse. 11. I now come to the next point in respect of the Courts jurisdiction to issue commission in view of Order XVI, Rule 1 of the Code. Mr. Ghosh has urged that Rule 1. It cannot, therefore, be said that the discretion exercised by the learned District Judge in favour of the opposite party is erroneous or perverse. 11. I now come to the next point in respect of the Courts jurisdiction to issue commission in view of Order XVI, Rule 1 of the Code. Mr. Ghosh has urged that Rule 1. of Order XVI entitles a party to get summonses issued against the witnesses and, therefore, a party cannot make a prayer for issue of a commission for examination of a witness and the Court would not, therefore, have any jurisdiction to issue a commission for the examination of a witness on the prayer of a party. It is said further that Rule 1 of Order XVI is not superseded by any other provision of the Code and therefore Order XXVI, Rule 4 will not supersede this Rule. I am unable :o accept this contention. Rule 1 of Order XVI of the Code allows a party to obtain summonses to persons whose attendance is required either to give evidence or to produce documents. Order XXVI deals with issue of commission to examine witnesses. Summonses issued by Courts are orders asking the persons to appear in Court whether it be for the purpose of their examination or for the purpose of production of documents. Order XVI, Rule 19 itself says that certain persons shall not be ordered to attend in person. Can it be said therefore that although a person has the right not to be ordered to attend in person the Court will issue a summons against such a person? Order XVI, Rule I obviously applies to a case where the person is asked to appear in Court. Rule 19 states the exception to the rule viz. as to who are persons who cannot be forced to attend Court and Order XXVI provides for commissions to be issued for examination of such witnesses. The argument that a commission cannot be issued at the instance of a party and the party has only right to obtain summonses is in my view without any foundation. Looking at Order XXVI itself it is quite clear that Rule 1 thereof deals with a case of commission for the examination of any person resident within the local limits of its jurisdiction who is exempted under the Code from attending the Court or who is sick or infirm. Looking at Order XXVI itself it is quite clear that Rule 1 thereof deals with a case of commission for the examination of any person resident within the local limits of its jurisdiction who is exempted under the Code from attending the Court or who is sick or infirm. Rule 2 provides for issue of a commission by the Court "either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined". It is quite obvious therefore that a commission can be issued on an application of the party concerned as well as on the application of the witness himself. The argument of [earned counsel that the witness himself must come to the Court and ask for his examination on commission and the party has no such right cannot be accepted at all. 12. Lastly, a prayer has been made with regard to awarding costs to the petitioner in respect of the examination of witnesses at Calcutta. In this connection reliance has been placed on the fact that in some of the reported cases, mentioned above, costs were awarded to the other party. So far as the question of awarding costs is concerned, it appears that the petitioner never raised the point before the trial Court. All that was said on her behalf was that issue of a commission would be expensive for her and that was a ground for opposing the prayer of the opposite party. The result is that the learned District Judge has not considered this aspect of the matter at all. Apart from that it is said that it is within the jurisdiction of this Court to grant that prayer in the circumstances of this case. My attention has been drawn to the fact that in the case of Kumar Sarat Kumar Ray, AIR 1922 Cal 42 (supra) the learned Judges had awarded a cost of Rs. 1000.00 payable to the plaintiff as costs in order to enable him to make adequate arrangements for the cross-examination of the defendant. In the case of Fariduddin Ahmad, AIR 1926 Pat 277 (supra) also the learned Judge had directed that the costs of the commission to the petitioner should be deposited before the commission was issued. 1000.00 payable to the plaintiff as costs in order to enable him to make adequate arrangements for the cross-examination of the defendant. In the case of Fariduddin Ahmad, AIR 1926 Pat 277 (supra) also the learned Judge had directed that the costs of the commission to the petitioner should be deposited before the commission was issued. On this basis it has been urged that costs should be awarded to the petitioner even in this case. 13. It will appear that in the aforesaid cases learned Judges were considering the question of awarding costs in respect of examination on commission of parties to the suit. It will, however, be noticed that there is a distinction between the right of a party to be examined on commission and the right of a witness whose attendance cannot be compelled in the Court itself in this respect. The distinction has been borne in mind in several cases. The question has to be approached in that perspective. Reference may be made to a decision of R. K. Choudhary, J. in the case of Mst. Anoora V/s. Babu Sagannal, 1963 BUR 490 = ( AIR 1963 Pat 213 ). In that case there was the question of examination of an expert residing at Simla and thus beyond the jurisdiction of the Court. The trial Court had awarded costs to the other party and the question raised was whether in such a case the Court could award such costs. The learned Judge referred to some of the decisions of other High Courts, including the decision in the case of Jiwibai V/s. Laxmichand Abasbhai, AIR 1955 Raj 32 and expressed his agreement with the view expressed by Wanchoo, C. J. as he then was. It was held in that case that where a commission has to be issued as a matter of course, as for example, when a witness resides more than two hundred miles from the court-house there is no question of allowing any sum as costs of the opposite party, but where the person applying for commission is not entitled as of right to get himself examined on commission, the Court has the power to impose such terms as it thinks fit as to the expenses of the opposite party also in case the commission is issued. The learned Judge was of the View that the term "expenses of the commission" mentioned in Order XXVI, Rule 15, did not include the costs to the party. Reliance was placed on the decision in the case of Kanji Karsondas v. Nathubhai Khimji, AIR 1953 Bom 390. I find myself in respectful agreement with the views expressed by the learned Judge. It seems to me further that it is not within the powers of the courts to put another fetter on the right of a person who is entitled to be examined on commission by laying down the condition that costs will have to be paid to the other party by the party applying for commission. The Code has not specifically laid down any provision to this effect and it is well settled that the expense which the law demands to be paid by the party is the expense of the commission which does not include the expenses to be incurred by the other party. In my view laying down a condition by a Court in respect of costs would undoubtedly result in fettering the right of a party and further it would amount, to a virtual amendment of the provision of the Code in this behalf. I am, therefore, of the view that where there is a right in a person not to be compelled to appear in Court for the purpose of his examination as a witness, but a commission has to be issued for his examination, it would neither be legal nor proper to add another limitation to the exercise of that right by an order for payment of costs to the opposite party. 14. In the present case the commission was asked for, for the examination of eight witnesses and the opposite party herself. I have already discussed earlier that the position of the opposite party herself prima facie appears to be similar to the position of a plaintiff, but she did not have the right to choose the forum and virtually therefore she was in the position of a defendant. Apart from that it is quite clear that the commission has got to be issued in this case for the examination of the eight witnesses who are living beyond the jurisdiction of the Court and they cannot be compelled to appear in person in the Court at Purnea. Apart from that it is quite clear that the commission has got to be issued in this case for the examination of the eight witnesses who are living beyond the jurisdiction of the Court and they cannot be compelled to appear in person in the Court at Purnea. The question is if no cost can be awarded for the purpose of examination of the eight witnesses, mentioned in the list, will it be proper to award costs to the petitioner in respect of the examination of the opposite party? If a commission has to examine the other eight witnesses, it cannot be said that any extra expenses or costs would be incurred by the petitioner so far as the examination and cross-examination of the opposite party herself is concerned. In these circumstances, I do not think it would be a fair order to direct the opposite party to pay costs to the petitioner in respect of her own examination in the case. 15. Learned counsel has, however, made a prayer that this Court may issue some direction in respect of the manner of the examination of the witnesses inasmuch as most of them appear to be members of the same family and some of them living in the same house. In this respect I must say that it should be the duty of the Court and the commission to see that a fair and impartial trial is held. The apprehension of the petitioner may not be absolutely without foundation. I would, therefore, direct that the Commissioner shall examine these witnesses at any place convenient to the parties and himself other than the houses of the opposite party and the witnesses concerned. 16. Subject to the observations aforesaid, this application is dismissed. In the circumstances of this case, however, there will be no order for costs.