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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
A.S. Anand, J.
Sri Ram - Appellant
Versus
Ashwani Kumar & Ors. - Respondent
Civil Revision Petition No. 44/1977
Decided On : 23 December, 1977
COMMISSION FOR WITNESS EXAMINATION - ORDER XVI RULE 19, ORDER XXVI RULE 1 AND 4 C.P.C. - COURT'S DISCRETION - JUDICIAL EXERCISE - REASONS FOR GRANTING COMMISSION - WITNESSES RESIDING BEYOND LOCAL LIMITS - WITNESSES RESIDING WITHIN LOCAL LIMITS BUT OUTSIDE JURISDICTION - EXPENSE AND DELAY NOT SUFFICIENT REASONS - PROPER AND JUDICIAL EXERCISE OF DISCRETION REQUIRED.
Fact of the Case:
Plaintiffs filed a suit for declaration that a sale deed executed by defendant No. 3 in favor of defendant No. 1 was null and void. During the trial, plaintiffs applied for the examination of three witnesses on commission, citing expense and delay as reasons. The trial court allowed the application, prompting the defendants to file a revision petition challenging the order.
Finding of the Court:
The court held that the trial court's order was not based on proper or judicial exercise of discretion and was materially illegal and irregular. The court found that the reasons given by the trial court, namely, expense and delay, were not sufficient to justify the grant of commission under Order XVI Rule 19, Order XXVI Rule 1, or Order XXVI Rule 4 C.P.C.
Issues: 1. Whether the trial court properly exercised its discretion in granting the commission for witness examination. 2. Whether the reasons given by the trial court, namely, expense and delay, were sufficient to justify the grant of commission.
Ratio Decidendi: 1. The court held that the discretion to grant commission for witness examination must be exercised judicially and not whimsically, and it must be exercised in aid of justice and not only for the benefit of a party to litigation. 2. The court found that the mere fact that it may prove expensive for the plaintiffs to produce the witnesses at Jammu was not a sufficient justification for the departure from the normal rule to insist upon the production of the witnesses in court. 3. The court also found that there was 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. 4. The court held that the trial court could not issue the commission as of right under Order XVI Rule 19 C.P.C. because the plaintiffs had not established that the witnesses were residing beyond the limits fixed under that rule. 5. The court held that the trial court was not justified to grant the commission under Order XXVI Rule 4 C.P.C. on the facts and circumstances of the case.
Final Decision: The revision petition was allowed, the trial court's order granting the commission was set aside, and the trial court was directed to summon the witnesses and dispose of the case expeditiously.
2. From a persual of the record it transpires that the plaintiffs have filed a suit for declaration to the effect that sale deed, dated January 14, 1974, and registered on the same day, executed by defendant 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 the 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.
3. 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.
4. 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 reagitate 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 C. P. C. Reliance has been placed by Mr. Dhanpat Rai on Major S. S. Khanna v. Brig. F. J. Dillon, A. I. R. 1964 S. C. 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 Messrs Suraj Lal Bal Krishna Das V. Padrauna Raj Krishna Sugar Works, Ltd. and another, A.I.R. 1961 Allahabad, 371. In that case a learned Single Judge of the Allahabad High Court held:
"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".
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 C.P.C. 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 A. I. R. 1964 S. C. 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 Code of Civil procedure and the purpose for which the High Courts were invested with the said jurisdiction. The jurisdiction conferred by Section 115 of the Code of Civil Procedure on the High Courts 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
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