(1) This it a revision petition against the order of the first addl. Judge,'city civil court, hyderabad, dated 19 - 2 - 74 dismissing the petition filed by the first defendant - the revision petitioner herein for appintment oft commissioner to record the evidence of two witnesses in rajas than.
(2) The learned counsel for the petitioner herein contends that the lower court erred in construing the provisions of order 26 rules i and 4 and order 16 rule 19 of the civil procedure code in refusing to appoint the commissioner for examination of the two witnesses.
(3) It will be necessary to state the brief facts of the case : the respondent herein filed a suit, original suit no. 39 of i960 for partition and separate possession of his half - a - share against the four defendants. Defendants no. 1 to 3 are the brothers and the 4th defendant u the uncle of the plaintiff. It is stated that the 4th defendant died pending the suit and no legal representatives are brought on record,
(4) The palalntiff showed the family pedigree in the plaint. The first defendant filed his written statement: and denled the correctness of the pedigree. After the evidence on behalf of the plaintiff was closed, the first defendant was examined as d. W. I. Thereafter the first defendant filed i. A. No. 49/74 10 examine two witnessess residing in nagore district in rajasthan on commission. It is stated in the affidavit of the first defendant that both the witnessess are old and chat the place where they reside is more than 500 miles distance from the court house in which the suit is pending and that their evidence is necessary to support his allegation in the written statement that the pedigree given in the plaint is not correct. It may be stated here that the first defendant denied that the plaintiff and the defendants are members of the joint, family. The plaintiff filed a counter stating the there are no sufficient grounds for the appointment of a commissioner, that their family settled three generations back in hyderabad and that there is already a decision of the judicial committee in case no. 19 of 1350 fas 11 in narayanadas. V. Thakur ranjith singh. It was further stated that there was no plea in the writen statement or in the deposition that there is any other pedigree. On the other hand the first defendant himself has admitted the relationship shown by the plaintiff. The defendant, if so choses. Can call for the witnesses and examine them in hyderabad. Examination of the witnesses on commission at far off places will cause great inconvenience to the parties and also results in inordinate delay. The lower court adverted to the point, whether there are sufficient reasons to issue commission to record the evidence of the witnesses at the places shown in the 'petition. The lower court stated that the first defendant had disputed the correctness of the pedigree showing one ranmal singh as the ancestor of the parties and contended that the descendants of the said ranmal singh have go separated and are enjoying their properties separately. The lower court dismissed the petition for the following reasons ; (1) that the suit was filed in 1968 and already five years have elapsed, (2) that the first defendant got himself examined and thereafter filed the application to examine the two witnesses at rajasthan (3) that the first defendant himself has admitted in his evidence that the plaintiff himself and the other defendants are the surviving heirs of the said ranmal singh and that the 4th defendant is his uncle (4) that there would be great inconvenience and waste of time if the witnesses are examined in rajasthan (5) that the witnesses sought to be examined on commission are not stated to be sick or in firm and (6) that the conveyance has so much developed that anybody could come with comfort and give evidence.
(5) The learned counsel for the petitioner contended that the lower court had not kept in its view the provisions of order 16 rule 19 of the civil procedure cede. The petition was no doubt filed for the appointment of a commissioner under order 26. But the consideration for passing such an order for appoinment was that the witnesses were residing at a place beyond the jurisdiction of the court and also more than 200 miles distance from the court house. Therefore unless some extenuating circumstances are shown, the court is bound to issue the commission for the recording of the evidence of these witnesses. There are no. Circumstances brought to the notice of the court which amount to fraud or abuse of process of the court, in filing the application for the issue of commission. In the absence of any such circumstances the court is bound to appoint the commissioner for recording of the evidence. It was further contended that the purpose for which the witnesses were to be ' examined was not a relevant factor for consideration at the point of time cf appointing the commissioner. Apart from that the petitioner has categorically denied the correctness of the pedigree given in the plaint and that the wit nesses sought to be examined, viz. Rao moti singh and thakur chob singh, possess necessary documents with them such as bhai bhat" which discloses the relationship of the parties.
(6) It is true that the provisions of order 16 rule 19 are attracted when the witnesses reside outside the jurisdiction and beyond 200 miles distance from the court house. It will be relevant to extract order 16 rule !9 of the civil procedure code here :
"19. No one shall be ordered to attend in person to give evidence unless he resides: (a) within the local limits of the court's 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 court house"
(7) The provisions of order 16 rule 19 are clear than the coum cannot order a witness to attend the court in person to give evidence when he resides beyond the jurisdiction of the court and at a place more than two hundred miles distance from the court house. It is contended on behalf of the respondent - plaintiff that the court has got its discretion to issue commission or not under order 26 rules 1 and 4, the relevant provisions of order 26 rules i and 4 c. P. C. Read as under: -
"i. Any court may in any suit issue a commission for the examination on the interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this code from attending the court or who is from sickness or infirmity unable to attend it. 4. (i) any court may in any sult issue a commission for the examination of - (a) any person resident beyond the local limits of its jurisdiction;."
(8) It is true that the court has got discretion to issue commisslon or not under order 26 rules i and 4. But when the provisions of order 16 rule 19 c. P. C. Are invoked to appoint a commissioner under order 26 rules i and 4, the court is bound to appoint the commissioner when the witness resides beyond its jurisdictlon and at a place beyond 200 miles from the court house. Thus there is no discretion left in the court to refuse to issue the commission in the circumstances stated in order 16 rule 19 c. P. C. The lower court has failed to keep in view the provisions of order 16 rule 19 c. P. C. And refused to appoint the commissioner keeping in view only the provisions of order 26 rule 4 (1) c. P,c. The discretion of the court to refuse to appoint the commissioner can only be exercised when the witness to her examied resides beyond the jurisdiction, of the court but at a place within 200 miles distance from the court - house - but when the residence of the witness is also beyond 200 miles distance, the court should not refuse to appoint a commissioner to record the evidence.
(9) It was pointed out that the lower court held that the petition was not bonafide. No reasons were given by the lower court as to how and why the application is not bonafide. The case went on for five years. But all the time was taken up only by the plaintiff to get his evidence recorded. It is not clear from the order as to how much time the defendant took out of the five years. It is evident that immediately after the evidence of the first defendant was recorded he filed the application for issue of the commission. Therefore, it cannot be said that the delay of five years in the prosecution of the suit was on account of the first defendant. On that ground it cannoc be said that the petition filed by the first defendant is not bonafide.
(10) The order of the lower court for the above reasons is set aside. Consequently the interlocutory application stands allowed. In the result, the revision petition is allowed and the lower court is directed to appoint a commissioner for recording the evidence of the witnesses. Under the circumstances, i make no order as to costs. .