1. The short point involved in this revision is as to whether the learned Civil Judge (Junior Division), Darwha has committed any error in not allowing the plaintiff to examine himself on commission.
2. The plaintiff filed an application dated Nov. 23, 1976, in the trial Court, requesting that the evidence of the plaintiff himself and his witness Awadhut may be recorded on commission. Defendant no. 2 did not object this application. However, it appears that defendant No. 1 raised an objection. The learned Civil Judge passed an order that the evidence of witness Awadhut should be recorded on commission as he is an old and ailing person, but it was directed that the plaintiff should examine himself in Court and not before the Commissioner. It is this order that is being challenged.
3. In the application, the plaintiff has stated that he is a Paramhansa and that he always remains in naked condition. It is on that count that a prayer was made that the plaintiff need not be asked to come in a naked condition in Court and that he should be examined on commission. The learned Civil Judge has observed in his order that being a paramhansa cannot be a ground for examining the plaintiff on commission.
4. Mr. Bapat for the non-applicant supported the order by contending that none of the provisions of Order 26, Civil P. C. would enable the plaintiff to examine himself on commission. Order 26, Rule 1, C. P. C. allows such evidence if the person (residing within the local limits of the jurisdiction of the Court) is exempted under the Civil P. C. from attending the Court, or is unable to attend the Court on account of sickness or infirmity. Rule 4 deals with three contingencies, viz., (i) that the person is residing beyond the local limits of the jurisdiction of the Court; (ii) that the person is about to leave such limits and (iii) that the person is a Government servant and whose attendance may be detrimental to the public service. It is true that these or any other rules of Order 26, C. P. C. do not cover a case similar to the present one. It was, therefore, urged by Mr. Bapat that the learned Civil Judge has rightly rejected the plaintiff's prayer. As against this Mr. Kherdekar for the applicant argued that the provisions in the Civil P. C. are not exhaustive and that main purpose of providing procedural details is to do justice to the parties. According to him, the Court would be having all the incidental powers to pass appropriate orders for administering justice. He submitted that these powers are kept in tact by S. 151, C. P. C. That section lays down that nothing in the Code of Civil Procedure shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary in the ends of justice. There is no express prohibition in the Civil P. C. that a witness shall not be examined on commission in the circumstances that are obtained here.
5. It is not in dispute that the plaintiff is living a life of 'Paramhansa' and in that capacity he always remains naked. It is true that there would be no technical difficulty for the plaintiff to come to the Court in a naked condition, However, the question is as to whether the Court would lend its hand to maintain decency and decorum in the Court' atmosphere. There is much substance in the submission of Mr. Kherdekar that propriety requires that if possible the appearance of a naked person in Court should be avoided. It is for this purpose ;hat the plaintiff has himself made an application that he may not be asked to attend the Court in a naked condition and that he should be examined on commission. No special reasons can be assigned on behalf of the defendants as to how their interests are likely to be prejudiced if the plaintiff is examined on commission. Thus, this is a fit case in which the trial Court should have passed an order under its inherent jurisdiction by directing the examination of the plaintiff on commission. The trial court has not taken into account these inherent powers that are vested in it and as such there is no application of mind as to whether the inherent powers should be exercised or not.
6. Under these circumstances, the order rejecting the plaintiff's prayer for examining himself on commission is set aside and in its place it in directed that the evidence of the plaintiff should be recorded on commission. Necessary orders be passed by the Trial Court about the appointment of a Commissioner and his remuneration etc.
7. In view of the peculiar circumstances of the case, the parties are directed to bear their own costs.
8. Application allowed.