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Ramesh Siram Sane Vs. Bhagwandas Atmasingh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 896 of 1971
Judge
Reported inAIR1972AP216
ActsCode of Civil Procedure (CPC), 1908 - Order 26, Rule 4 - Order 16, Rule 19
AppellantRamesh Siram Sane
RespondentBhagwandas Atmasingh
Appellant AdvocateK. Raghava Rao, Adv.
Respondent AdvocateJ.V. Suryanarayana Rao, Adv.
Excerpt:
.....commission - order 26 rule 4 and order 16 rule 19 of code of civil procedure, 1908 - petitioner filed application for issue of commission for examining his witnesses living in bombay - petitioner did not provide any reason for requirement of those witnesses - petitioner filed application with mala fide motive of protracting litigation and to abuse process of court - held, court not bound to issue commission where petitioner had mala fide motive. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is..........witnesses is not dispensed with. the court however is granted discretion under order 26, rule 4 to issue commission to examine witnesses including those who are parties to the suit. that discretion is exercised in exceptional cases.5. in regard to witnesses who are not parties to the litigation the position is different. as the litigation the position is different. as parties to the suit are litigants they have a duty to the courts as well as to themselves to give evidence. such evidence is in their own self-interest. witnesses who are not parties, however, have no self-interest in giving evidence. they tender evidence only in discharge of a duty which every citizen owes to administration of justice. when citizens discharge them every amenity and facility and it is in this context rule.....
Judgment:
ORDER

1. The question that arises in this revision petition is whether the Court is bound to issue a commission to examine in all cases where the witnesses live beyond 200 miles from the Court house.

2. The respondent filed O. S. No. 187 of 1969 in the Subordinate Judge's Court, Vijayawada to recover R. 7182/- from the defendant-petitioner on two hundis. It is the case of the defendant-petitioner that the transaction had taken place through a broker by name Thakker. The said broker lives in Bombay, which is certainly more than 200 miles away from Vijayawada where the suit came up for trial. The petitioner applied to the Court under Section 151 and Order 26, Rule 4 C. P. C. to issue a commission to examine the broker at Bombay. The Court dismissed the petition saying that it was belated and was filed after examining three witnesses for the defendant and was filed only to protect the hearing of the petition. It is this order that is sought to be revised.

3. Though the application for the issuance of a commission was made under Section 151 and Order 26, Rule 4, C. P. C. Sri Raghava Rao for the petitioner placers strong reliance on Rule 19 of Order 16 also. Order 26 relates to commissions and Order 16 to the summoning and attendance of witnesses. Rule 4 of Order 26 enumerates the persons for whose examination commission may issue. clause (2) thereof refers to any person resident beyond the local limits of its jurisdiction. Rule 19 of Order 16 provides that:

'No one shall be ordered to attend in person to give evidence unless he resides----------

(a) Within the local limits of the Court's Ordinary original jurisdiction; or

(b) Without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the Court house.'

Bombay is certainly much more than 200 miles away from Vijayawada where the trial was taking place. Therefore, Sri Raghava Rao argues that the Court is bound to issue a commission to examine the broker at Bombay.

4. It should be noted that witnesses are of two types--one is of witnesses who are parties to the suit and the other is of witnesses who are not such parties. In the case of witnesses who are parties, usually, their presence in the witness box before the Court is necessary and in any case very desirable. Therefore, excepting in rare cases their presence before the Court as witnesses is not dispensed with. The Court however is granted discretion under Order 26, Rule 4 to issue commission to examine witnesses including those who are parties to the suit. That discretion is exercised in exceptional cases.

5. In regard to witnesses who are not parties to the litigation the position is different. As the litigation the position is different. As parties to the suit are litigants they have a duty to the Courts as well as to themselves to give evidence. Such evidence is in their own self-interest. Witnesses who are not parties, however, have no self-interest in giving evidence. They tender evidence only in discharge of a duty which every citizen owes to administration of justice. When citizens discharge them every amenity and facility and it is in this context Rule 19 of Order 16 should be understood. In fact, in my opinion Order 16, Rule 19 is contemplated as a safeguard and a protection to non-party witnesses so that they are not inconvenienced and harasses while giving evidence in other people's causes. If witnesses live beyond 200 miles from the Court house, the Rule lays down that they shall not be ordered to attend in person to give evidence. In such a case the Court should issue a commission to examined non-party witnesses who come within the scope of Rule 19 of Order 16, provided of course the application therefore is not an abuse of the process of Court or male fide, or is vitiated by any similar circumstances. If the court is satisfied that the application for the issue of a commission to examine non-party witnesses who live at a long distance is an abuse of the process of the Court or mala fide then it need not issue the commission, because in such a case the Court would be helping the party to abuse the process of Court. Before such an application is rejected the Court must be satisfied that it is mala fide or an abuse of the process of the Court. I find support for this view in Subrahmanayam v. Venkatayya, : AIR1963AP429 . That being the legal position I will now proceed to consider whether the rejection of the petitioner's application by the lower Court is justified or not.

6. As I have said, in this particular case it is the request of the defendant that the broker should be examined on commission. No material has been placed before the Court that the witness himself seeks such a commission.

7. Further the circumstances of the case would clearly demonstrate that the request of the defendant for the issuance of the commission is mala fide and by way of abuse of process of Court. The suit was filed on 7-8-1969. An ex parte decree was passed on 25-6-1970 but it was set side at the instance of the defendant on 12-11-1970. The defendant filed his written statement on 9-12-1970. The issues were framed on 21-12-1970 and the suit was posed for trial to 10-2-1971. It was adjourned at the request of the defendant to 15-3-1971. Once again at his request it was peremptorily adjourned to 8-4-71 But, the defendant did to rest constant even with this adjournment. He once again pressed for an adjournment and the suit was posted to 17-4-1971. Even on the adjourned day the defendant was not present and the Court was obliged to post the suit to 24-6-1971. Even on that day the defendant was not ready and once again the Court adjourned the suit to 5-7-1971. On that day the trial commenced and P. W. I was examined. At the request of the defendant to 15-7-1971 for examining defendant's witnesses. On that day D. W. I and two other witnesses from Bombay were examined. It was only on that day the present application for the issue of commission was filed. Saying that it was belated and was intended to protract and delay the proceedings, the Court did not accede to this request and dismissed it. The arguments were concluded on 17-7-1971 and delivery of judgment was posted to 28-7-1971. At this stage the present revision was filed and stay was obtained. The above events would clearly demonstrate the delaying tactics and the procastination indulged in by the defendant. He did not assign any reasons why he did not ascertain the convenience of the broker and apply for the issuance of a commission after 10-2-1971 when the suit was posted for trial. Even on 5-7-1971 when the trial commenced he did not make that application. It was only when the trial was closed he filed it. It is obvious in the circumstances he filed it with the mala fide motive of protracting the litigation. It is nothing but abuse of process of the Court.

8. Surprisingly the defendant does not even assign any particular reason why a commission should be appointed to examine the broker at Bombay. He merely stated that the broker was preoccupied in Bombay. This is not at all a clear or acceptable reason. The application is undoubtedly tantamount to abuse of the processes of Court.

9. I am, therefore, satisfied that the lower Court's order is right and the revision petition is devoid of merits. The revision petition is dismissed with costs.

10. Petition dismissed.


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