T. Syed Basha and another Applicant v. A. P. S. R. T. C. , rep. by its Regional Manager, Kurnool
2006-03-24
L.NARASIMHA REDDY
body2006
DigiLaw.ai
ORDER These two revisions arise under identical facts. Hence, they are disposed of through a common order. 2. The petitioners filed O.P.Nos.406 and 407 of 2003 before the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Kurnool at Nandyal, claiming compensation against A.P.S.R.T.C. They alleged that they sustained injuries in an accident involving the bus bearing No.AP10-Z -8109 on 15-09-2002. According to them, they were initially treated in Government General Hospital, Kadapa and thereafter, were shifted to Madanapalli Hospitals Private Limited, Madanapalli. The treatment is said to have taken place in that hospital from 16th to 26th September, 2002. 3. The recording of evidence in the O.Ps. has commenced. At that stage, they filed I.A.Nos.269 and 270 of 2005 respectively under Order 26 Rule 9 C.P.C. to appoint an Advocate Commissioner to record the evidence of one Dr. A Maheswara Rao of M/s. Madanapalli Hospitals Private Limited. The Tribunal rejected the applications, through common order, dated 30-03-2005. Hence, these two revisions. 4. Sri K. Rathangapani Reddy the learned counsel for the petitioners, submits that the view taken by the Tribunal that no Commissioner can be appointed to record the evidence of a witness, who is residing within the distance of 500 k.m. from the place of the Court, cannot be sustained in law. He contends that the parameters for appointment of a Commissioner under Order 26 C.P.C. for recording the evidence are different from those stipulated under Rule 19 of Order 16 C.P.C., in the matter of issuing summons to witness. He further submits that whatever may have been the factors that used to weigh in the mater of appointment of Commissioner to record evidence, with the introduction of Rule 4-A to Order 26 C.P.C., a substantial change is brought about and the order under revision cannot be sustained in law. 5. Sri P. Vinayaka Swamy, the learned standing counsel for the respondent, on the other hand, submits that the necessity to appoint an Advocate Commissioner to record the evidence of a witness would arise, if only, the witness is in a prohibitive distance from the place of the Court or where the witness is incapacitated from attending the Court. 6. The petitioners filed applications for appointment of an Advocate Commissioner to record the evidence of a medical practitioner at Madanapalli.
6. The petitioners filed applications for appointment of an Advocate Commissioner to record the evidence of a medical practitioner at Madanapalli. They pleaded that they have undergone treatment at that place and being a busy practitioner, the Doctor, who treated them, expressed his inability to travel all the way to Nandyal and depose as a witness. 7. Order 16 C.P.C. deals with the summoning and attendance of witnesses. Rule 19 thereof places some restrictions in the matter of summoning persons to appear and depose as a witness. The purport of the said Rule is that a person can be summoned as witness if he: (a) resides within the local limits of the Courts ordinary or territorial jurisdiction. (b) resides outside the territorial limits of the Court, but at a place which is less than 100 k.m. from the place of the Court. (c) resides at a place outside the territorial limits of the Court, which is less than 500 k.m. provided that such place is connected with railway or steamer or other established public conveyance up to an extent of five sixth of the distance between the place of the Court and residence of the witness. 8. The purport of the said provisions is that no person can be summoned as witness, who resides beyond 100 k.m. from the place of the Court, if such place is not connected with the railways, steamers or public conveyance. Where such place is connected with such conveyance, to an extent of five sixth he can be summoned, if only, the distance is less than 500 k.m. For a witness who resides outside 500 k.m. the recording of evidence must invariably be through commission. 9. Order 26 C.P.C. provides for appointment of commissions for various purposes, including the one, to examine witnesses. Rule 4-A of Order 26 permits examination of witness through commission. The categories of witnesses, that can be examined through such mode, are enlisted. 10.
9. Order 26 C.P.C. provides for appointment of commissions for various purposes, including the one, to examine witnesses. Rule 4-A of Order 26 permits examination of witness through commission. The categories of witnesses, that can be examined through such mode, are enlisted. 10. Sub-rule (1) of Rule 4 of Order 26 C.P.C. reads as under: Persons for whose examination commission may issue (1) Any Court may in any suit issue a commission (for the examination on interrogatories or otherwise of-) (a) any person resident beyond the local limits of its jurisdiction; (b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and (c) any person in the service of the Government who cannot, in the opinion of the Court, attend without detriment to the public Service: 11. From this it is evident that it is permissible to appoint a commission to examine a witness even if he resides within the local limits of the jurisdiction. Recording of evidence of a witness who resides beyond 500 k.m. from the place of the Court is invariably through commission and the Court mist record reasons if a commission is appointed for examination of a witness who resides within the territorial jurisdiction of the Court or outside the jurisdiction of the Court, but within 100 k.m. or at a place less than 500 k.m. from the place of the Court and is connected with railways, steamers, or public transport. Therefore it is permissible for any Court to appoint a Commission to record the evidence of a witness, who resides within the close proximity also. The only requirement is that the reasons must be recorded while doing so. 12. With the introduction of Rule 4-A in Order 26 C.P.C. the inherent restrictions placed upon the Courts in the matter of appointment of commissions to summon witness, virtually stand relaxed. 13. Rule 4-A reads as under: Commission for examination of any person resident within the local limits of the jurisdiction of the Court Notwithstanding anything contained in these rules, any Court may, in the interest of justice or for the expeditious disposal of the case or for any other reasons, issue commission in any suit for the examination, on interrogatories or otherwise of any person resident within the local limits of its jurisdiction and the evidence so recorded shall be read in evidence.
14. This provision was introduced almost as a corollary to Rule 4 of Order 18 C.P.C., to save the time of the Courts. 15. The judgment of this Court in Shaik Sattar Saheb v. M.Banu Bee1 needs to be understood in the light of these developments. When the C.P.C. was amended permitting appointment of commissions to record the evidence of witnesses, irrespective of the distance within which they reside, the Tribunal ought not to have rejected the applications on the sole ground that the witness was residing within the distance of 500 k.m. from the place of the Court. 16. Hence, the civil revision petitions are allowed and the orders under revision are set aside. The applications shall stand ordered and the Tribunal shall appoint an Advocate Commissioner to record evidence of the witness named in the applications. It is needless to observe that the expenses for this purpose must be incurred by the petitioners alone.