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2004 DIGILAW 140 (HP)

DESH RAJ v. BODH RAJ

2004-07-02

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—In election petition No. 1 of 2003, the applicant/ petitioner wants to examine the Incharge, Gadi Pt. Rattan Lal Kanshi Ramji of Haridwar. The witness was summoned alongwith the record who showed his inability to produce the record as it was quite voluminous and its removal was likely to result in inconvenience to the persons who might visit Haridwar where the aforesaid witness maintains the summoned record. Therefore, the applicant has moved the present application for examining the said witness on Commission. 2. The respondent opposed the application mainly on the grounds that no prima facie case for appointment of a commission for examination of the witness is made out and in case the commission is appointed the applicant be directed to compensate the respondent by paying a sum of Rs. 1,02,000 on account of counsel fee, travelling, boarding, lodging and other miscellaneous expenses. 3. I have heard the learned Counsel for the parties. 4. It is not in dispute that the Gadi, the Incharge whereof is to be examined and the relevant records are at Haridwar. The records sought to be produced are alleged to be the records containing the pedigree tables of the persons who visit Haridwar. The records so maintained for generations apparently will be voluminous and the witness resides beyond the territorial jurisdiction of this Court. It is not in dispute that people visit the Gadi almost every day and the record is required to facilitate their requirements. In these circumstances, there are reasons to order appointment of a commission for examining the Incharge of the aforesaid Gadi. 5. It was contended by the learned Counsel for the respondent that the respondent and two of his counsel will have to visit Haridwar and thus will have to incur considerable expenses, therefore, the applicant should be directed to pay their expenses amounting to Rs. 1,02,000, as detailed in Para 4 of the reply. 6. On the other hand, the learned Counsel for the applicant submitted that the applicant is liable only to pay the expenses of the commission and is not liable in law to pay the expenses of the respondent. 7. Order 26 of the Code of Civil Procedure provides for appointment of commissions to examine witnesses. Rule 15 thereof which deals with the expenses of commission reads as under: "Rule 15. 7. Order 26 of the Code of Civil Procedure provides for appointment of commissions to examine witnesses. Rule 15 thereof which deals with the expenses of commission reads as under: "Rule 15. Expenses of commission to be paid into Court.—Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued." 8. It is clear on a plain reading of the above rule that it provides for passing an order by the Court for depositing the expenses of commission by the party at whose instance and for whose benefit the commission is to be issued within a time to be fixed by the Court before the issue of the Commission. The expression "expenses of the commission" as used in the rule supra by no stretch of imagination can be interpreted to include the expenses of the opposite party or its counsel. In other words, the expression "expenses of the commission" does not include the expenses of the opposite party. Therefore, the party at whose instance the commission is appointed cannot be asked to deposit the expenses of the opposite party within the framework of Order 26 of the Code. There is preponderance of judicial opinion to support this view. 9. In Kanji Karsondas and others v. Nathubhai Khimji, AIR 1953 Bombay 390, while dealing with the subject, the Bombay High Court held as under:— "This rule provides that before a commission is issued under Order 26, the Court may order such sum, if any, as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into court by the party at whose instance or for whose benefit the commission is issued. Mr. Gokhale contends that the expression "the expenses of the commission" should be liberally construed and it should be held that the Court has the power in a fit case to direct the party applying for commission to deposit not only the expenses of the Commissioner but also the costs of the opponent. Mr. Gokhale contends that the expression "the expenses of the commission" should be liberally construed and it should be held that the Court has the power in a fit case to direct the party applying for commission to deposit not only the expenses of the Commissioner but also the costs of the opponent. That is how the only point which we have to consider in the present revisional application is as to the proper denotation "the expenses of the commission." (3) The words used are "the expenses of the commission" and not "the costs of the commission". Section 35, for instance refers to the costs of the suit, and in exercising its jurisdiction under . Section 35 it would no doubt be competent to the Court to make an order as to the costs not only of the suit as such, but other costs incidental ever, use the word "costs", but it speaks of "the expenses of the commission." In our opinion this expression has been deliberately used because in the context Rule 15 is intended to provide for the deposit of the expenses directly attributable to the issue of the commission. It is not all costs resulting from the issue of the commission which are intended to be deposited by the party under Rule 15 of Order 26. It is only the expenses of the commission which have to be deposited by him. These expenses would normally be the fees to be paid to the Commissioner and the other out of pocket expenses which may have to be incurred to secure the presence of the witnesses before the Commissioner. In other words, this expression cannot, in - our opinion, be extended to include costs of the opponents pleader or the costs which the opponent himself may have to incur to go to the place where the Commissioner is going to examine the witnesses in question." 10. In Asanand Nanak Chand Aggarwal v. C.A. Ayyathurai, (1956 TRA-CO 260), it was held as follows: "Thus the trend of the decisions of all the High Courts is that the expression expenses of the commission in Order 26 Rule 15, Civil P.C. does not include the expenses of the opposite party and includes only the Commissioners fee and the expenses incurred by the Commissioner in connection with the execution of the Commission. We are also of the same opinion and consider that the expression cannot be given the wide construction it has received at the hands of Mack J. Consequently we hold that the lower Court had no jurisdiction under Order 26, Rule 15, Civil P.C. to pass the order impugned in this Revision Petition." 11. In the Union of India representing the Eastern and Southern Rly. v. Messrs. Natabarlal Jayashankar, AIR 1956 Orissa 65, wherein the commission was to be appointed for examining a witness on commission on the request of the defendant and the plaintiff insisted for the payment of his expenses, the Orissa High Court held as under :— "7. The next point that requires consideration is whether in the event of a commission being allowed the plaintiffs should be put in possession of funds for going to Bezwada and attend the trial, Order 26, Civil P.C. is very comprehensive and furnishes a complete Code in itself. Rules 15 to 18 lay down certain general provisions for the expenses of the commission. The expression "expenses of the Commission" used in Rule 15 would indicate that all reasonable expenses of the Commissioner, including his remuneration and incidental expenses incurred by him are to be provided for by the Court and to be paid into Court by the party at whose instance or for whose benefit the commission is to be issued. I am unable to find any provision which would warrant the view that the plaintiffs expenses also should be provided for by the Court." 12. Similar view has been taken by Andhra Pradesh High Court in Maremanda Seshamma v. Joolori Narasimha Rao and others, AIR 1963 Andhra Pradesh 167. 13. In view of the above legal position, the respondent herein is not entitled to claim the expenses which may be incurred by him in attending the commission or engaging a counsel to represent him before the commission or for any other incidental charges. 14. As a result, this application is allowed. With the consent of the learned Counsel for the parties Shri Ravinder Thakur, Advocate, Shimla is appointed commission to record the statement of the Incharge of GADI "Pandit Rattan Lal Kanshi Ram Ji Upper Road, Haridwar, Distt. Haridwar, Uttaranchal State". 14. As a result, this application is allowed. With the consent of the learned Counsel for the parties Shri Ravinder Thakur, Advocate, Shimla is appointed commission to record the statement of the Incharge of GADI "Pandit Rattan Lal Kanshi Ram Ji Upper Road, Haridwar, Distt. Haridwar, Uttaranchal State". The Commission will fix time and date of recording the statement and intimate the parties through their counsel of such time and date atleast five days before the date so fixed. If any record lying with the court is required by the Commissioner to execute the commission, the same shall be handed over to him against proper receipt by the Registrar General of this Court with direction to return the same immediately after the execution of the commission. 15. The commission will submit its report within 30 days of the receipt of intimation about the appointment. Appeal allowed.