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1923 Supreme(Lah) 28
Lahore High Court
Zafar Ali, J.
T W V Elvers - Appellant
Versus
The American Motor Co, Through Latif Ahmad - Respondent
Decided On : 20-01-1923
JUDGMENT
Zafar Ali, J. - This is a petition in revision by a defendant-judgment-debtor for an order to set aside an ex parte decree passed against him by the Judge of the Cantonment Small Cause Court, at Rawalpindi, on the ground (1) that he erred in refusing to examine him as his own witness and (2) that he had no jurisdiction to try the case.
2. (2) is not pressed before me, but as regards (1) the facts are as below:
3. The defendant at the time of the trial of the case resided in Kishtwar in the Kashmir State, at a distance of more than 200 miles from Rawalpindi, and so his Counsel presented an application to the Court below to issue a commission to examine him at Kishtwar. This application was eventually rejceted and as the defendant could produce no evidence in defence, the suit was decreed. I am of opinion that, under the circumstances stated above, the lower Court was wrong in refusing to issue a commission for the examination of the defendant as his own witness. He had no other witness nor could he be expected to come all the way from Kishtwar to defend the action personally, or to appear in the witness-box. Therefore, I accept this petition, set aside the ex parte decree with the direction that the suit should be decided afresh after examining the defendant as his own witness. A commission must be issued for his examination as he does not reside within British India, and his place of residence is more than 200 miles by road from Rawalpindi. Parties to bear their own costs in this Court.
