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Sri Ram v. Ashwani Kumar And Others
Factual and Procedural Background
This revision petition challenges an order dated May 6, 1977, of the learned Sub-Judge, Jammu, which allowed the plaintiffs' application for the examination of three witnesses on commission. The plaintiffs had filed a suit seeking a declaration that a sale deed dated January 14, 1974, executed by defendant No. 3 in favor of defendant No. 1, was null and void against their rights. During the trial, the plaintiffs applied for examination of witnesses on commission, which the defendants opposed, requesting that witnesses appear in court. The trial court allowed the application, prompting the defendants to file this revision petition. A preliminary objection was raised that no revision lies against interlocutory orders that do not decide the matter in controversy.
Legal Issues Presented
- Whether the interlocutory order allowing examination of witnesses on commission amounts to a "case decided" under Section 115 of the Code of Civil Procedure (CPC) and is therefore revisable.
- Whether the trial court exercised its discretion judicially and properly in granting the commission for examination of witnesses.
- Whether the grounds cited by the trial court for granting the commission—expense and delay—are sufficient and justified under the relevant provisions of the CPC.
- The applicability and interpretation of Order XVI Rule 19 and Order XXVI Rules 1 and 4 of the CPC concerning examination of witnesses on commission.
Arguments of the Parties
Petitioner's Arguments
- The trial court acted with material irregularity and committed an error in granting the commission application.
- The interlocutory order is a "case decided" under Section 115 CPC because the grievance cannot be re-agitated once evidence is recorded on commission.
- Relied on S.S Khanna v. F.J Dillon, AIR 1964 SC 497 and Suraj Lal Bal Krishna Das v. Padrauna Raj Krishna Sugar Works Ltd., AIR 1961 All 371 to support the wide meaning of “case decided.”
- The reasons given by the trial court—expense and delay—are fallacious and insufficient to justify granting the commission.
- Argued that the commission was wrongly granted under Order XXVI Rule 4 of the CPC as the witnesses did not reside beyond the prescribed local limits under Order XVI Rule 19.
Respondents' Arguments
- Preliminary objection that no revision lies against interlocutory orders which do not decide the matter in controversy.
- Argued that the court has a duty under Order XXVI Rule 4(1)(a) CPC to issue commission to witnesses residing beyond the local limits of the court.
- Maintained that witnesses resided outside the local limits of the Jammu court, justifying the grant of commission.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| S.S Khanna v. F.J Dillon, AIR 1964 SC 497 | Interpretation of "case decided" under Section 115 CPC; supervisory jurisdiction of High Courts | The Court relied on this precedent to hold that interlocutory orders can amount to a “case decided” if the controversy cannot be re-agitated, thus making the order revisable. |
| Suraj Lal Bal Krishna Das v. Padrauna Raj Krishna Sugar Works Ltd., AIR 1961 All 371 | Wide meaning of the phrase “case decided” beyond just “suit decided” | Supported the view that interlocutory orders can be treated as “case decided” for revisional purposes under Section 115 CPC. |
| Megh Mal Ghosh v. Indu Bh. Ghosh, AIR 1977 NOC 236 (Cal) | Illegality and irregularity in granting commission based on inadmissible evidence | Used to illustrate improper exercise of discretion in granting commission, justifying interference under Section 115 CPC. |
Court's Reasoning and Analysis
The Court analyzed whether the interlocutory order permitting examination of witnesses on commission was revisable under Section 115 of the CPC. It held that the expression "case decided" must be understood in light of the supervisory jurisdiction of High Courts, which includes rectifying errors in interlocutory orders that settle controversies which cannot be re-agitated later. Since the grant of commission would make the examination an accomplished fact, the order was a "case decided" and thus revisable.
The Court then examined the exercise of discretion by the trial court in granting the commission. It noted that the trial court's reasons—expense and delay—were insufficient and not contemplated under the relevant procedural rules (Order XVI Rule 19 and Order XXVI Rules 1 and 4 CPC). The normal rule is that witnesses must appear in court unless exceptions apply, such as residence beyond prescribed local limits or inability due to sickness. The plaintiffs failed to establish that the witnesses resided beyond the local limits, and the trial court did not record sufficient reasons to justify the commission.
The Court emphasized that the discretion to grant commission must be exercised judicially and in aid of justice, not merely for the convenience or benefit of a party. The mere fact that producing witnesses in court might be expensive or cause delay does not justify issuing a commission. The Court found no material on record to support the claim that examination in court would delay the trial. Consequently, the trial court acted with material illegality and irregularity in issuing the commission.
Holding and Implications
The Court allowed the revision petition and set aside the order dated May 6, 1977, of the learned Sub-Judge, Jammu, which had granted the commission for examination of witnesses.
The trial court was directed to summon the witnesses to appear in court for examination if so desired by the plaintiffs and to dispose of the case expeditiously. The parties were ordered to appear before the trial court on January 4, 1978.
This decision directly affects the parties by invalidating the commission order and restoring the normal procedure of witness examination in court. No broader precedent beyond the application of supervisory jurisdiction under Section 115 CPC and the proper exercise of discretion under the CPC procedural rules was established.
1. This revision petition is directed against the order of learned Sub-Judge, Jammu, dated May 6, 1977, by which he allowed an application of the plaintiffs - (respondents herein) for the examination of their witnesses namely Arjan Nath Trakoo, petition-writer, Srinagar, Ali Sheikh, Lambardar of village Nunnar Tehsil Gandarbal and the patwari Nunnar Circle Tehsil Gandarbal on commission.
2. From a perusal of the record it transpires that the plaintiffs have filed a suit for declaration to the effect that the sale deed dated Jan. 14, 1974, and registered on the same day, executed by Page: 79defendant No. 3 in favour of defendant No. 1 was null and void, and inoperative against the rights of the plaintiffs. During the course of trial, some evidence was recorded by the learned Sub-Judge, Jammu, when on April 27, 1977, an application was moved before the learned trial court for the examination of the above-named three witnesses on commission. On notice of that application being given to the defendants, they filed their objections to the application and submitted that the witnesses be directed to appear in court and be not examined on commission. The objections of the defendants did not find favour with the learned trial court. Aggrieved, with the order of the learned trial court the defendants have come up to this court by means of this revision petition. A preliminary objection has been taken by Mr. Tak appearing for the respondents to the effect that no revision lies against an interlocutory order which does not decide the matter in controversy between the parties to the litigation.
3. Mr. Dhanpat Rai, learned counsel for the petitioner, has in reply submitted that the trial court, while granting the application of the plaintiffs for the examination of three witnesses on commission, has acted with material irregularity and has committed an error in the exercise of its jurisdiction. It is urged that since the defendants cannot re-agitate the grievance with regard to the grant of commission in either by appeal or otherwise, the interlocutory order of the learned trial court would amount to a ‘case decided’ and be revisable under Section 115 of the CPC. Reliance has been placed by Mr. Dhanpat Rai on S.S Khanna v. F.J Dillon, AIR 1964 SC 497 wherein their Lordships of the Supreme Court have observed that to interpret the expression “case” as an entire proceedings only and not a part of proceedings would be to impose restriction upon the exercise of powers of superintendence which the revisional jurisdiction confers on the High Courts. Reliance has also been placed on Suraj Lal Bal Krishna Das v. Padrauna Raj Krishna Sugar Works, Ltd., AIR 1961 All 371. In that case a learned single Judge of the Allahabad High Court held (at p. 372):—
“I have come to the conclusion…… that the phrase ‘case decided’ had a wide meaning and that its meaning was not co-extensive with “suit decided.”
4. It is urged that in the light of these two authoritative decisions, the interlocutory order passed by the learned trial court would amount to a “case decided” and the revisional jurisdiction of this Court under Section 115 of the CPC can be invoked by the aggrieved party.
5. I am afraid I cannot agree with the argument of Mr. Tak and give a narrow and limited meaning to the expression “case decided”. In AIR 1964 SC 497 (supra) their Lordships of the Supreme Court have opined that the meaning of the expression “case decided” must be sought in the nature of jurisdiction conferred by Section 115 of the CPC and the purpose for which the High Courts were invested with the said jurisdiction.
6. The jurisdiction conferred by Section 115 of the CPC on the High Court is a supervisory jurisdiction and has been conferred on the High Courts to rectify errors committed by the subordinate courts in the exercise of their jurisdiction and the like matters. Their Lordships in the aforesaid authority observed that the expression “case” also includes civil proceedings other than suits and is not restricted by anything contained in the section “to the entirety of the proceedings in the civil court.” Whether a particular order amounts to a “case decided” or not, would depend upon the facts and circumstances of each case and it is neither desirable nor possible to lay down a general formula as to when an interlocutory order may amount to a “case decided.” One such instance when an interlocutory order can be said to amount to a “case” decided would be when the controversy settled by the interlocutory order is such that it cannot be reagitated either in appeal against the final order or otherwise. In the instant case the grievance of the petitioner against the grant of commission cannot be reagitated by the petitioner at any stage once the evidence is recorded on commission, it will be an accomplished fact and the mischief cannot be undone subsequently. In this view of the matter, I am of the opinion that the interlocutory order dated May 6, 1977, in the instant case amounts to a “case decided” and is revisable under Section 115 of the CPC. The preliminary objection raised by Mr. Tak is as such overruled.
7. Mr. Dhanpal Rai has then argued that the reasons given by the learned Sub-Judge, Jammu, for allowing the application are fallacious. It is urged that the learned Sub Judge appears to have been influenced only by the fact that it would be expensive for the plaintiffs to bring Page: 80the witnesses to Jammu, and the other reason that the trial would be delayed if the witnesses are called to Jammu, is not based on facts on record.
8. Before proceeding to examine the argument of Mr. Dhanpat Rai it would be useful to reproduce the relevant provisions of the Code of Civil Procedure. O. 16 R. 19 of the CPC provides:
“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 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.”
O. XXVI R. 1 of the CPC provides:—
“1. Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code attending the Court or who is from sickness or infirmity unable to attend it.” O. XXVI, R. 4 of the CPC provides:—
“Any Court may in any suit issue a commission for the examination 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 civil or military officer of the Government who cannot, in the opinion of the Court, attend without detriment to the public service.”
9. A perusal of the aforesaid provisions shows that it is within the discretion of a trial court to grant commission for the examination of witnesses upon the conditions contained in O. XXVI R. 1 and O. XXVI R. 4 are satisfied. The discretion by the court has to be exercised judicially on the trial Judge being satisfied that the commission should be issued. From the perusal of the order of the learned trial Judge, the only grounds which appear to have led to his satisfaction for the grant of the application of the plaintiffs were that the examination of witnesses at Jammu would cause undue expense to the plaintiffs and would also delay the trial of the suit. Both these reasons are not by themselves sufficient for the exercise of the discretion, either under O. XXVI R. 1 or O. XXVI R. 4 of the CPC. The normal rule of procedure is that for recording the evidence of the witnesses, they should be called to appear in court and give evidence. Exceptions have been provided to the general rule under O. XXVI, Rr. 1 and 4 and O. XVI R. 19 of the CPC. When a commission is asked for, the court is under an obligation to record a definite finding and come to a conclusion that sufficient reasons exist for the grant of the commission and the reasons must be such which can stand scrutiny by the higher courts and the reasons should be such as are contemplated either under O. XXVI or O. XVI and the like.
10. That the producing of witnesses in the court would prove expensive for the party, is not any of the reasons specified or contemplated by the aforesaid provisions. It is argued by Mr. Tak that under O. XXVI R. 4 sub-Rule (1)(a) the court has a duty to issue commission to witnesses beyond the local limits of the court.
11. The court indeed has a discretion to grant commission but the discretion has to be exercised judicially and not whimsically and it has to be exercised in aid of justice and not only for the benefit of a party to litigation. Unless covered by the specific provisions of the Code e.g when a witness is exempt to appear in court or is from sickness or infirmity unable to appear in court or the like, commission should not be issued on the mere asking and the court should not issue commissions unless a very strong case is made out. The word ‘may’ in Rules 1 and 4 of O. XXVI means that the court has the ‘discretion’ to issue the commission and not that it is ‘duty’ bound to issue the commission whenever asked for. The mere fact that it may prove expensive for plaintiffs to produce the witnesses at Jammu, is hardly any justification for the departure from the normal rule to insist upon the production of the witnesses in court. There is also nothing on the record to show that any attempt had been made to procure these witnesses and that their production was causing delay in the disposal of the suit. The reason that examining of the witnesses in court would cause delay, therefore, appears to me to be only imaginary and not based on any material on the record.
12. I also do not find any force in the argument of Mr. Tak that since the witnesses Page: 81belong to village Nunnar, Tehsil Ganderbal, Srinagar, and were, as such, outside the ‘local limits of the courts’ at Jammu, the commission was rightly granted.
13. The commissions are granted, as of right, in the case of witnesses residing ‘beyond’ the limits fixed under O. XVI R. 19 of the CPC but if a witness resides ‘within’ the limits prescribed by O. XVI R. 19 of the CPC though, outside the local limits of the jurisdiction of the court, the grant of commission becomes discretionary, O. XVI R. 19 of the CPC does not take away the discretionary powers given under O. XXVI R. 4 of the CPC. In the instant case, the plaintiffs had not, even asserted in their application for the grant of commission let alone satisfactorily established that the witnesses were residing beyond the limits fixed under Order XVI R. 19 of the CPC. There was, thus, no basis for the trial court to issue the commission as of right, under O. XVI R. 19 of the CPC. The trial court could, therefore, act only under O. XXVI R. 4(1)(a) of the CPC. it is in fact conceded that the court issued the commission under O. XXVI R. 4 of the CPC and as noticed above the court was not justified to grant the commission under O. XXVI R. 4 of the CPC on the facts and circumstances of this case.
14. In Megh Mal Ghosh v. Indu Bh. Ghosh, AIR 1977 NOC 236 (Cal) a Division Bench of the Calcutta High Court opined that where the trial court allowed an application under O. XXVI R. 1 of the CPC for the examination of witnesses on commission basing itself on an inadmissible medical certificate, the trial court had acted illegally and there had been an illegal exercise of jurisdiction by the trial court. Warranting interference under Section 115 of the CPC the revision petition filed against the trial court's order was, as such, allowed by the Calcutta High Court.
15. Considering, the totality of the circumstances of the case and a perusal of the record I am satisfied that the discretion exercised by the trial court has not been exercised either properly or judicially and the trial court has acted with material illegality and irregularity to the exercise of its jurisdiction. The revision petition is accordingly allowed and the order of the learned Sub Judge dated May 6, 1977, is hereby set aside. The trial court is directed to summon the witnesses, if so desired by the plaintiffs, for an early date and dispose of the case expeditiously. The parties through their learned counsel are directed to appear before the trial court on Jan. 4, 1978.
16. Revision allowed.
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