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Satyanarain v. Bajranglal

Rajasthan High Court

Jul 28, 1975

Judgment

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Concise Analytical Summary of the Opinion

Factual and Procedural Background

The plaintiff sued the defendant for eviction of a shop and arrears of rent, alleging that the defendant was a tenant of Smt. Sharda Devi who had sold her interest in the property to the plaintiff by registered sale deed and had notified the defendant. The plaintiff claimed he required the premises to carry on business. The defendant resisted, inter alia alleging that the plaintiff's need was not bona fide and reasonable.

On the pleadings, eight issues were framed. The plaintiff presented his evidence on 16-11-1974 (reserving rebuttal). The case was fixed for examination of the defendant's witnesses by a Commissioner; the Commissioner reported that the defendant's witnesses refused to depose. The defendant then filed lists of five witnesses (various locations including Patna, Bombay, Assam, Gujarat, Alwar). The trial court fixed dates in December 1974 for defendant's evidence and directed the defendant to present his witnesses personally. Process-fees and summons were later handled; several adjournments and partial examinations occurred. On 23-12-1974 the trial court directed that process be issued (on payment of process fee) for witnesses residing within 200 miles and that witnesses beyond 200 miles be produced by the defendant personally; dates in January 1975 were fixed for further evidence. The defendant filed process late (filed in wrong court then in trial court on 4-1-1975). On 15-1-1975 the defendant applied for commissions for three witnesses residing beyond 200 miles; on 16-1-1975 the trial court refused the commission application and closed the defendant's evidence. The defendant (revision-petitioner) challenged that order by way of revision.

Legal Issues Presented

Whether the trial court erred in refusing to issue commissions for examination of witnesses residing at places more than 200 miles from the court-house (i.e., whether commission under Order 26, Rule 4, CPC is a matter of right for such witnesses or is within the court's discretion).
Whether the trial court committed a material irregularity in refusing to issue process/summons to witnesses residing within the 200-mile jurisdictional limit and in closing the defendant's evidence on that ground.

Arguments of the Parties

Petitioner's (defendant in trial; revision-petitioner) Arguments

The court erred in refusing to issue commissions for witnesses residing more than 200 miles away; it was incumbent on the court to issue commission.
Relied on Order 16, Rule 19 and Order 26, Rule 4 of the Civil Procedure Code to contend that where personal attendance cannot be compelled, the party is entitled to examine such witnesses on commission.
Authorities relied upon (as cited in the opinion): Jagannatha v. Sarathambal (AIR 1923 Mad 321); Moodavanchu Borraya v. Kasavajjula Ramkoti Sashtri (AIR 1949 Mad 468); Subrahmanyam v. Venkayya (AIR 1963 Andh Pra 429); Mst. Anoora v. Sagarmal (AIR 1963 Pat 213); Union of India v. M/s. Natbar Lal (AIR 1956 Orissa 65); Panchkari Mitra v. Panchanansaha (AIR 1924 Cal 971); Aswani Kumar v. Anukulchandra (AIR 1950 Cal 326).

Non-petitioner's (respondent / plaintiff in trial) Arguments

Issue of commission under Order 26, Rule 4 is within the discretion of the court and cannot be claimed as a matter of right.
Authorities relied upon (as cited in the opinion): Ramsewak v. Harihar (AIR 1927 Rang 175); P.R. Bizani v. Hanszucker (AIR 1960 Andh Pra 459); Sudhansu Mohan v. Union of India (AIR 1958 Orissa 287); Jaya Shanker Mills v. Hari Zakaria (AIR 1962 Andh Pra 435); Ramkrishna v. F. E. Hardcastle & Co. (AIR 1963 Mad 103); In Re Thirupathiamma (AIR 1956 Mad 179); Kather Dutt v. Dist. Magistrate (AIR 1956 All 232); Mohammed Khan v. Ibrahim (AIR 1958 All 19).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jagannatha v. Sarathambal, AIR 1923 Mad 321	Cited for the proposition that ordinarily commission for witnesses beyond prescribed limit is a matter of right unless there is abuse of authority.	The court acknowledged this authority as aligning with the petitioner's proposition but held that even under that view a party cannot claim commission as an absolute right where there is mala fides or abuse; the court emphasized the discretionary element.
Moodavanchu Borraya v. Kasavajjula Ramkoti Sashtri, AIR 1949 Mad 468	Cited in support of the petitioner's contention that commissions should be issued for witnesses beyond 200 miles.	The court grouped this with other authorities cited by the petitioner and observed they align with Jagannatha; nonetheless the court concluded commission is not an absolute right and discretion remains.
Subrahmanyam v. Venkayya, AIR 1963 Andh Pra 429	Cited in support of petitioner's right-to-commission argument.	Noted by the court among petitioner-cited authorities; court nonetheless held discretion under Order 26, Rule 4 persists.
Mst. Anoora v. Sagarmal, AIR 1963 Pat 213	Cited in support of petitioner's position on issuing commission.	Recognized by the court as part of petitioner-cited authorities but not treated as displacing the court's discretion under Order 26, Rule 4.
Union of India v. M/s. Natbar Lal, AIR 1956 Orissa 65	Cited in support of the petitioner's contention about commission.	Cited as part of petitioner's authorities; court did not treat it as establishing an absolute right to commission.
Panchkari Mitra v. Panchanansaha, AIR 1924 Cal 971	Cited in support of petitioner's proposition regarding commissions.	Included among authorities the court considered; court maintained the overarching view that discretion must be exercised judicially.
Aswani Kumar v. Anukulchandra, AIR 1950 Cal 326	Cited by petitioner for the proposition favouring issue of commission.	Recognized by the court but not held to mandate commission as of right in all cases.
Ramsewak v. Harihar, AIR 1927 Rang 175	Cited for the proposition that issue of commission is within court's discretion.	Noted by the court as representative of authorities holding that commission is discretionary; the court endorsed the discretionary view subject to judicial exercise.
P.R. Bizani v. Hanszucker, AIR 1960 Andh Pra 459	Relied on to support the discretionary character of issuing commissions.	Counted among respondent-cited authorities; the court accepted that discretion exists and must be judicially exercised.
Sudhansu Mohan v. Union of India, AIR 1958 Orissa 287	Cited in support of discretion in issuing commissions.	Included among cases supporting discretion; court considered these authorities in forming its conclusion on discretion.
Jaya Shanker Mills v. Hari Zakaria, AIR 1962 Andh Pra 435	Cited to show commission is discretionary.	Noted by the court as part of respondent's authorities underpinning the discretion view.
Ramkrishna v. F. E. Hardcastle & Co., AIR 1963 Mad 103	Cited for the discretionary approach to commissions.	Recognized by the court among respondent-cited cases supporting discretion.
In Re Thirupathiamma, AIR 1956 Mad 179	Cited as authority indicating discretion in issuing commissions.	Included among respondent-cited authorities; court treated the area as one of discretion to be judicially exercised.
Kather Dutt v. Dist. Magistrate, AIR 1956 All 232	Cited to support discretion in the issuance of commissions.	Noted by the court in the course of considering respondent authorities; did not alter court's conclusion that discretion exists.
Mohammed Khan v. Ibrahim, AIR 1958 All 19	Cited in support of the discretionary nature of issuing commissions.	Referenced among respondent-cited cases; court remained of the view that discretion exists and must be exercised judicially.
Jiwibai v. Laxmichand, ILR (1955) 5 Raj 68 = AIR 1955 Raj 32	Quoted (Wanchoo, C.J.) for an observation that commission shall be issued as a matter of course to witnesses beyond 200 miles.	The court observed the Wanchoo, C.J. remark but concluded that those observations do not obliterate the court's discretion to refuse commission in appropriate cases; the court therefore read Jiwibai as not removing discretionary control.

Court's Reasoning and Analysis

The court began by examining the interplay of the statutory provisions cited by the parties — notably Order 16, Rule 19 and Order 26, Rule 4 of the Civil Procedure Code — and the authorities relied upon.

On the statutory construction point the court made these key observations:

Order 16, Rule 19 (b) prevents the court from compelling the personal attendance of witnesses who reside more than 200 miles from the court-house; this only means the court cannot enforce personal attendance by process for such witnesses, but it does not automatically entitle a party to have those witnesses examined on commission in every case.
Order 26, Rule 4 uses the word "may", which prima facie indicates the court has a discretion to issue commissions; although "may" in other provisions (for example, Order 26, Rule 1) can sometimes be read as "shall", the court concluded that the legislative use of "may" in Rule 4 is intended to vest judicial discretion rather than create an absolute right.
The court recognized that authorities (including Jagannatha) indicate that, ordinarily, commissions for witnesses beyond the 200-mile limit will be granted unless there is abuse, mala fides or other factors; conversely other authorities treat the issue as wholly discretionary. The court reconciled these views by holding that while there is strong ground for granting commissions in many cases, the right is not absolute and the discretion must be exercised judicially.

Applying the statutory and precedential principles to the facts of the case, the court considered the defendant's conduct and the content of the application for commission:

The defendant had filed witness lists in late November 1974 and had earlier applied that the witnesses be examined in court; no request for commission was made at that time.
The application for commission was only made on 15-1-1975 (near the end of the scheduled trial dates), and the application merely listed names without stating how the witnesses were material or explaining the inordinate delay in seeking commissions.
In these circumstances — late application, absence of explanation for delay, lack of showing of the witnesses' materiality and the potential for abuse or protraction — the court concluded that the trial court did not misapply its discretion in refusing commissions for the three witnesses residing beyond 200 miles.

On the second issue (process/summons to witnesses residing within 200 miles), the court analyzed the trial court's order of 23-12-1974 which directed the defendant to file process on that very day. The court found:

The trial court did not give reasonable time to the defendant to file the process; the defendant's counsel argued that the order was passed late on 23-12-1974 and that winter holidays followed (24-12-1974 to 1-1-1975), making compliance difficult.
Although the defendant filed process belatedly (and initially in the wrong court, then in the trial court on 4-1-1975), the court held that because the process had been filed leaving reasonable time to effect service for witnesses within the jurisdiction, the omission by the trial court to issue process and the closure of evidence constituted a material irregularity.
Thus the trial court's refusal to summon the within-200-mile witnesses and the closing of the defendant's evidence on that basis was improper and warranted interference in revision.

Holding and Implications

Core Ruling:

Revision allowed in part.

More specifically:

The trial court's refusal to issue commission for the examination of the three witnesses residing beyond 200 miles is maintained — the refusal was upheld because the application for commission was late, did not explain delay, and did not demonstrate materiality such that the court's discretion to refuse was properly exercised.
The trial court's refusal to summon witnesses who resided within 200 miles of the court and its consequent closing of the defendant's evidence is set aside as a material irregularity. The revisional court directed that the trial court shall proceed to issue process (summons) for those witnesses for whom process was prayed on 23-12-1974.
Costs: The parties were left to bear their own costs.

Implications: The decision reiterates that Order 26, Rule 4 is discretionary — commissions are not an absolute right even for witnesses residing beyond 200 miles — but also confirms that procedural fairness (such as reasonable opportunity to file process for within-jurisdiction witnesses) must be observed; where a trial court's omission amounts to a material irregularity, revision may be warranted. The opinion does not purport to establish a new binding precedent beyond its application to the facts before the court.

Show all summary ...

1. This revision petition is directed against the order of the Additional Munsif Bhilwara dated 16th of January, 1975, whereby he refused to issue commission for the examination of the three witnesses residing 200 miles away from the court house and further refused to issue process to the witnesses living within the limits of 200 miles from the court premises and thus closing the evidence of the defendant.

2. The plaintiff commenced an action for eviction of a shop and arrears of rent against the defendant-revision-petitioner alleging that the defendant was the tenant of one Smt. Sharda Devi who sold her right, interest in the said property in favour of the plaintiff by a registered sale-deed which fact was notified by her to the defendant by a written notice. The plaintiff claimed that he required the suit premises for carrying the business as he and his brother were carrying the business in a rented shop.

3. The defendant resisted the plaintiff's claim on various grounds and inter alia alleged that the premises were not required by the plaintiff bona fide and reasonably for carrying the business.

4. On the pleadings of the parties the court in all framed 8 issues. The plaintiff led his evidence in support of the issues the burden of which was placed on him and his evidence on 16-11-1974 reserving his right of rebuttal on the issues the burden of which was placed on the defendant and the case was fixed for the examination of the defendant's witnesses before Commissioner Mr. Nandlal who was directed by the Court to submit the record with his report on 28-11-1974. On 28-11-1974 the Commissioner submitted the record with the report that the defendant's witnesses had refused to depose before him. It may be mentioned here that the defendant had moved an application in the court on 27-11-1974 stating therein that he did not want to examine his witnesses on Commission and prayed that his witnesses be examined by the court. On the next day i. e. on 28-11-1974 the defendant filed a list of five witnesses, namely, (i) Shivprasad of Patna, (ii) Omprakash of Bombay, (iii) Jamna Dhar of Bagchale (Assam), (iv) Makhanlal of Jalore (Gujarat) and Sheo-dayal of Alwar. On 28-11-1974 the case was adjourned to 30th of November, 1974, for necessary orders. On 30th of November, 1974, the plaintiff's Advocate expressed that he had no objection to the defendant's witnesses being examined by the court. Accordingly the court acceded to the defendant's request and fixed 19th, 20th and 21st of December, 1974, for defendant's evidence and directed the defendant to present his witnesses for himself. However, the defendant thereafter submitted process-fee for summoning the witnesses and summons were issued to the witnesses for hearing of 19-12-1974. On 19-12-1974 the presiding officer was having his camp at Mandal-garh but the defendant's witnesses Radheyshyam and Smt. Sharda Devi were absent in spite of service. Sanwarmal was present who was directed to be present on 20th of December, 1974. On 20th of December, 1974, the defendant was partly examined but his statement could not be completed for want of time, The court, however, on that day deprecated the conduct of the Reader in issuing process to the witnesses in the absence of any order to that effect and directed the defendant to bring the witnesses for himself. On 21st of December, 1974, the defendant's statement was completed. The other witnesses of the defendant were not present for which the application for summoning them was submitted by the defendant and the case was fixed for consideration of the application on 23rd December, 1974. On 23rd December, 1974, the court partly allowed the defendant's application for want of objection by the plaintiff's counsel and directed that the process be issued on submission of the process fee on that very day to the witnesses residing within 200 miles from the court house. The trial court further directed the defendant to produce the witnesses residing beyond 200 miles for himself and fixed 15th and 16th of January, 1957, for the defendant's evidence. The defendant failed to file the process on 23rd of January, 1975, but filed the same on 4-1-1975. On 15-1-1975 the witnesses of the defendant were not present but the defendant moved an application for issuing commission for the examination of the witnesses residing beyond 200 miles from the court house and the case was adjourned to 16th of January, 1975. On 16th of January, 1975, the court dismissed the application praying for issue of commission and closed evidence as defendant's witnesses were not present. It is against this order that the defendant has come up in revision before this Court.

5. It has been firstly contended before me that the court erred in refusing commission for the examination of the witnesses who were residing at various places which were at a distance of more than 200 miles from the court house. It was argued that it was incumbent upon the court to have issued the commission for the examination of such witnesses. Reliance was placed on Order 16, Rule 19, Civil Procedure Code and Order 26, Rule 4, Civil Procedure Code. The learned counsel for the defendant urged that Order 16, Rule 19, Civil Procedure Code precludes the court from compelling the attendance of such witnesses before the court and therefore the defendant was entitled as a matter or right to examine such witnesses on commission under Order 26, Rule 4, Civil Procedure Code. In this connection reliance was placed on Jagannatha v. Sarathambal, AIR 1923 Mad 321, Moodavanchu Borraya v. Kasavajjula Ramkoti Sashtri, AIR 1949 Mad 468, Subrahmanyam v. Venkayya, AIR 1963 Andh Pra 429. Mst. Anoora v. Sagarmal, AIR 1963 Pat 213; Union of India v. M/s. Natbar Lal, AIR 1956 Orissa 65, Panchkari Mitra v. Panchanansaha, AIR 1924 Cal 971 and Aswani Kumar v. Anukulchandra, AIR 1950 Cal 326.

6. On the other hand Mr. Pareek on behalf of the non-petitioner contended that issue of commission under Order 26, Rule 4, Civil Procedure Code was in the discretion of the court and it could not be claimed as of right. He relied upon Ramsewak v. Harihar, AIR 1927 Rang 175; P.R. Bizani v. Hanszucker, AIR 1960 Andh Pra 459. Sudhansu Mohan v. Union of India, AIR 1958 Orissa 287; Jaya Shanker Mills v. Hari Zakaria, AIR 1962 Andh Pra 435. Ramkrishna v. F. E. Hardcastle and Co., AIR 1963 Mad 103, In Re Thirupathiamma, AIR 1956 Mad 179; Kather Dutt v. Dist. Magistrate, AIR 1956 All 232 and Mohammed Khan v. Ibrahim, AIR 1958 All 19.

7. I have perused the cases cited by the learned counsel for the petitioner. They are in line with the proposition laid down in Jagnnatha v. Sarathambal, (AIR 1923 Mad 321) wherein it has been held that ordinarily in case of witnesses not under the control of party asking for the examination of the witnesses residing beyond the limit fixed under Order 16, Rule 19 (b) C. P. C, the issue of a commission is a matter of right unless the court is satisfied that the party is merely abusing the authority for getting the commission issued. On the other hand the cases cited by the learned counsel for the non-petitioner proceed on the view that issue of commission is entirely within the discretion of the court which of course has to be exercised in a judicial manner and no party can ask for the issue of commission as a matter of right. It is true that Order 16, Rule 19 (b), Civil Procedure Code precludes the court from compelling the attendance of the witnesses residing more than 200 miles from the court house but merely on that account it cannot be said that the party has a right to examine such witnesses on commission. All that Order 16, Rule 19, Civil Procedure Code says is that the personal attendance of such witnesses in the court shall not be enforced by a process, but that does not lead to an inference that such witnesses are necessarily to be examined on commission in any event. Order 26, Rule 4 is an independent provision and is in no way controlled by Order 16, Rule 19, Civil Procedure Code. From a bare reading of Order 26, Rule 4, Civil Procedure Code it will appear that the word 'may' has been used in that section which gives indication that the court has got discretion. It is true that the word 'may' some times has force of 'shall' but looking to the language of Order 26, Rule 4, Civil Procedure Code and the object which it seeks to achieve the word 'may' cannot be read as shall. The reason is obvious. There may be so many factors weighing with the court before issuing a commission. To illustrate the point, suppose the party asks for a commission for the examination of his witnesses at the fag-end of the trial with inordinate delay or with a view to protract the proceedings although the witnesses proposed to be examined on commission are not at all material in the case. Has the party even in such cases a right to examine the witnesses on commission although they be resident of place beyond the limits prescribed under Order 16, Rule 19, Civil Procedure Code ? That could not have been the intention of the legislature. It appears to me that the legislature had used the word 'may' so as to vest discretion in the court to issue commission for the examination of the witnesses in appropriate cases. It was, however, argued that the word 'may' also appears in Order 26, Rule 1, Civil Procedure Code but there the word 'may' will have force of 'shall' otherwise the very object of Order 26, Rule 1, Civil Procedure Code shall be rendered meaningless. On this analogy it was argued that the word 'may' which occurred in Order 26, Rule 4, Civil Procedure Code should also be construed as having the force of 'shall'. I am not impressed with this argument. According to me even Order 26, Rule 1, Civil Procedure Code if the party is guilty of laches or abuse of the process of the court or if the witnesses are not material the court is not at all helpless and has a discretion in the matter of issuing commission. Even the authorities cited by the learned counsel for the petitioner concede that if the application is mala fide or is made with inordinate delay the court has got discretion in the matter of issue of commission. It therefore cannot be said that the commission can be claimed as of right even for the examination of the witnesses residing beyond 200 miles. Each case has to be examined on its own facts and circumstances involving in it and court has to exercise judicial discretion in considering the application for commission. I need not therefore discuss the authorities cited at the Bar individually.

8. The learned counsel for the petitioner, however, laid stress on the observation of Wanchoo, C. J., as he then was made in Jiwibai v. Laxmichand, ILR (1955) 5 Raj 68 = (AIR 1955 Raj 32) wherein Wanchoo, C. J., while interpreting Order 26, Rule 15, Civil Procedure Code has observed that commission shall be issued as a matter of course to the witnesses residing beyond 200 miles from the court house but these observations do not necessarily imply that court has no discretion to refuse commission in appropriate cases. The correct interpretation of Order 26, Rule 4, Civil Procedure Code in my opinion is that the court has discretion to issue commission under Order 26, Rule 4, Civil Procedure Code and the commission cannot be claimed as a matter of right. The discretion has, however, to be exercised according to well accepted judicial principles.

9. In the light of legal position referred to above I have to examine whether the trial Court had erred in refusing to issue commission for the examination of the three witnesses of the defendant residing beyond 200 miles in this case. As stated above the petitioner's evidence was to be recorded on 27th of November, 1974. He filed the list of witnesses on 28th of November, 1974, and further filed the list of witnesses on 30th of November, 1974, but did not pray for issue of commission to any of the witnesses. On the other hand, the petitioner had moved an application on 27-11-1974 to the effect that he did not want to examine his witnesses on commission and prayed that they be examined in the court. Even on that date, the petitioner did not move for issue of commission. It was only on 15th of January, 1975 that he applied for commission. Even the application praying for commission simply mentioned the names of the witnesses and did not say how the witnesses sought to be examined on commission were material. Further no reason was stated as to why the application was being made with inordinate delay. In this state of affairs it cannot be said that the trial court had exercised the discretion in improper manner in refusing to issue commission for the examination of the aforesaid three witnesses, nO case has been made out for interference of the order refusing the issue of commission.

10. The next contention of the learned counsel for the petitioner is that the court committed material irregularity in refusing to issue process to the witnesses residing within the jurisdiction of the court. I have examined the contention and I am of the opinion that it is not without substance. The date 23rd of December, 1974, was fixed for defendant's evidence. On that day at the request of the defendant the court ordered for issue of process for the attendance of the witnesses for the hearing of 16th of January, 1975. To this, counsel for the plaintiff had no objection. The court, however, directed the filing of the process on that very day. The learned counsel has stated in his revision application that the impugned order was passed at 4.00 P. M. on that day and from 24th December, 1974, to 1st of January, 1975, were winter holidays and it was, therefore, not at all possible for him to carry out the court's order. Be that as it may, one thing is clear that the court did not give reasonable time to the defendant to file the process when it ordered the process to be filed on that very day. The defendant filed process on 2-1-1975 in a wrong court i.e., the court of District Judge and the same was filed on 4th of January 1975, before the trial Court. The case as stated earlier, was fixed on 15th and 16th of January, 1975, the process had been filed on 4-1-1975. The process should not have been refused on the ground that such an application was too late; though it is within the discretion of the court to refuse adjournment of the case on the ground of inaction of the party. The closure of evidence without issuing summons to the defendant's witnesses, although there was ample time available for the defendant to get the process served upon the witnesses who were residing within the jurisdiction of the court in my opinion, is a material irregularity. Once the process has been filed for summoning the witnesses even with delay leaving reasonable time to effect service, an omission to issue process and close the evidence for non-appearance of the witnesses amounts to material irregularity on the part of the trial court. This part of the court's order, therefore, is improper and deserves to be interfered with in revision.

11. In the result, the revision petition is allowed in part. The order regarding refusing to issue commission for the examination of the witnesses residing beyond 200 miles from the court house is maintained. The order regarding refusing to summon the witnesses residing within the limits prescribed under Order 16, Rule 19, Civil Procedure Code and closing the evidence is set aside. The court shall now proceed to issue process to those witnesses for which prayer has been made by the defendant on 23rd of December, 1974. In the facts and circumstances of the case the parties are left to bear their own costs.