Chinnu v. Sambanda Moorthi

1. Mr. Krishnasamy Aiyar invites me to say that in all cases where a Judge has either issued a commission to examine certain witnesses or refused to issue a commission this Court under the Charter Act has power to satisfy itself upon the facts whether that exercise of discretion by the Court below was right or not and to remedy the injustice which has been done to the party, and he quotes Lekhraj Ram… v. Debi Pershad…Opposite Party.(1) for the position that the arm of the High Court is long enough to reach all cases of injustice. I cannot accede to this contention. It would virtually mean that the High Court is to sit in appeal over every exercise of discretion by the Court below, even though under the law no appeal is given to the party against whom the discretion has been exercised.

2. The case of Vidya Puma v. Seethamma(2) is a case where a party, in order to coerce another party to enter into a compromise, vexatiously summoned him as a witness where there was no necessity to summon him at all, and the learned Judges came to the conclusion that the order for the issue of a commission in that case must be regarded as an abuse of the process of the Court.

3. In that case the largest extension of the-power of the High Court to interfere in such matters has been reached; I feel that nothing short of the conclusion that there has been a wanton abuse of the process of the Court, to which the Court below, either wittingly or unwittingly lent itself, will induce this Court to interfere in revision. That is not the case before me. All that has been said in this case is that there has been an error of judgment on the part of the learned Judge which has seriously prejudiced the petitioner. It is, no doubt, true that it was held in Vidya Purna Thirthaswami v. Seethamma(3) that every party has a right under O. 26, R. 4 of the CPC, to require that a commission should issue for the examination of witnesses, and I am inclined to think that in this case it would have been better if the learned Judge had granted the application, because there was a possibility of the commission being returned before-the hearing itself took place. Probably, when an application is made afresh to the District Judge, if he is satisfied that before the case is finally heard the commission can be returned, this order will not stand in the way of his exercising; his discretion in favour of the plaintiff. But I cannot say that under Section 15 of the Charter Act, or Section 115 of the CPC, the; refusal of the District Judge amounts to an abuse of the process of the Court or that he has acted with material irregularity in the exercise of his jurisdiction. The case In re Nizam of Hyderabad(4) decided by Muthusami Aiyer, J., is a case in point. Following that decision I hold that this Court has no power to interfere with the order passed by the District Judge under the circumstances of this case. I therefore dismiss the petition with costs.

S.N/R.K

4. Petition dismissed.