Difference between witness and party to suit.

This is an application to revise an order of the learned District Munif of Salem, dated 7th December, 1966, dismissing an application filed by the petitioner for examining herself on commission. I must straightaway point out that the petitioner is the plaintiff in O.S.No. 674 of 1965 on the file of the learned District Munsif, Salem. The present I.A. No. 2003 of 1966 for the purpose of examining her on commission was filed on the ground that she was residing 200 miles away from Salem in Nilambur in Kerala State and her husband has been recently discharged from the Mental Hospital and she had been attending on her husband. The learned District Munsif dismissed the application holding that previously the respondent had filed an application directing the petitioner to be present in the Court and in that application no objection was taken by the petitioner that she could not because of the distance, be present, in Court. The learned District Munsif has further pointed out that Nilambur is not far away from the Court and that there is no difficulty for the petitioner to appear before the Court if she really intended to do so. It is to revise this order the present civil revision petition has been filed.

Mr. N. Appu Rao, learned Counsel for the petitioner, contends that the Code of Civil Procedure, does not make any difference between a witness and a party to a suit and once a person comes within the scope of Order 16, rule 19 Code of Civil Procedure, such a person is entitled to be examined on commission, whether such a person happens to be a witness or a party to the suit. Admittedly, whether a commission should be issued for the examination of a witness or not is always a matter of discretion of the Court. But, in exercising the discretion, the Court will have to take into consideration the fact whether the person sought to be examined on such commission is a party to the suit or merely a witness.. There is a vital difference between a witness and a party to the suit, because, a witness is not interested in the subject-matter of the litigation and he is a third party to the action, but with reference to the parties, the same cannot be said. Even as between the parties, there is again a basic difference between the plaintiff and the defendant. The plaintiff is the person who has initiated the action and has chosen the forum and dragged the defendant into the Court. Consequently, with reference to the plaintiff, when he or she wants to give evidence in support of his or her case, the position is different from that of a third party being called to come to the Court to give evidence in support of the plaintiff or the defendant. Therefore I am unable to agree with the contention for the petitioner that there is no difference between a party witness and a third parly witness.

In support of his contention, Mr. Appu Rao relied upon on Gulab Rai Ghutghutia v. Mahendra Nath Sreemani1. Even in that decision, the learned Judge had pointed out that the case of the plaintiff stands on a different footing from that of a defendant or a witness when the question arises as to whether a commission should issue for examination or not, and although in the Code of Civil Procedure there is no distinction drawn anywhere so far as this point is concerned between the plaintiff, a defendant or a witness, yet as a rule of prudence this rule can be supplied. The learned Judge further pointed out that when the plaintiff has chosen the forum and has filed the suit in the forum of his own choice, he is not entitled to have a commission issued unless under very exceptional circumstances. Consequently, the decision of the Patna High Court, far from supporting the contention of Mr. Appu Rao is against him.

On the other hand, Jagadisan, J., in Ramakrishna Kulwant Rai v. F. E. Hardcastle & Co.2,had observed:

“The witness, who is a third party to the action, cannot be compelled to attend Court to give evidence if he is resident at a place beyond 200 miles away fr