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Mohammad Azizul Rahman Khan Vs. Mohammad Ibrahim - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 314 of 1953
Judge
Reported inAIR1958All19
ActsCode of Civil Procedure (CPC) , 1908 - Order 26, Rules 1 and 5 - Order 47, Rule 1
AppellantMohammad Azizul Rahman Khan
RespondentMohammad Ibrahim
Advocates:Syed Sadiq Ali, Adv.
DispositionRevision dismissed
Excerpt:
.....- rules 1 and 5 and order 47 of code of civil procedure, 1908 - issue of commission to examine witness in pakistan - party cannot demand issue of commission as a matter of right - court's discretion to decide whether issue of commission is necessary - no arrangement between countries regarding commission of witness - court's can withdraw its order and review it. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school..........on commission it would be, to say in the least, most embarrassing to send a commission from india to pakistan for the examination of a witness residing in pakistan.an authority on the question was also placed before the court and that authority was the decision in national fire and general insurance company ltd. v. mool singh, air 1951 simla 227 (a), in which harnam singh j., held that since there was no reciprocal arrangement between india and pakistan, a letter of request cannot be addressed to a court in pakistan for the examination of a witness residing there nor could an officer of a court in india, in the absence of any reciprocal arrangement regarding the examination of a witness on commission, be directed to record evidence in pakistan.the learned judge relied on this.....
Judgment:

Mukerji, J.

1. This is an application in revision by a plaintiff against an order of the Court below withdrawing its earlier order in respect of a commission which it had directed to issue to Pakistan for the examination of certain witness.

2. It appears that the plaintiff made an application for the examination of certain witnesses on commission; originally he wanted the examination of three witnesses on commission but subsequently the plaintiff confined his request to the examination on commission of Saghir Ahmad, who was residing at the time in Pakistan. On the 9th of September, 1952 the Court appointed a local lawyer as a Commissioner for the examination of Saghir Ahmad in east Pakistan. It appears that subsequently it was brought to the notice of the Court that a commission could not be issued for the examination of a witness in Pakistan because there were no reciprocal arrangement between India and Pakistan for the examination of witnesses in either of those two territories.

The Court thereafter made an order directing the parties to re-argue this matter before it and to place such authorities as they had in support of their respective contentions. The matter was thereafter taken up for hearing on the 23rd of December, 1952. It was then pointed out to the Court that since there was no reciprocity between India and Pakistan in the matter of examination of witnesses on commission it would be, to say in the least, most embarrassing to send a commission from India to Pakistan for the examination of a witness residing in Pakistan.

An authority on the Question was also placed before the Court and that authority was the decision in National Fire and General Insurance Company Ltd. v. Mool Singh, AIR 1951 Simla 227 (A), in which Harnam Singh J., held that since there was no reciprocal arrangement between India and Pakistan, a letter of request cannot be addressed to a Court in Pakistan for the examination of a witness residing there nor could an officer of a Court in India, in the absence of any reciprocal arrangement regarding the examination of a witness on commission, be directed to record evidence in Pakistan.

The learned Judge relied on this authority and re-called his earlier order of the 19th September, 1952. Mr. Sadiq Ali, appearing on behalf of the plaintiff, has contended that the Court had no jurisdiction to withdraw its earlier order of the 19th September, 1952. We are not able to agree with this contention for we are of the opinion that in a matter of this character the Court certainly had the power to review its own order. It must be remembered that the issue of a commission for examination of a witness is not a right of a party but is dependent upon the discretion of the Court.

The Court exercised its discretion earlier in this matter without being aware of the complications that were likely to arise. The Court, therefore, was competent to undo something the effect of which was likely to cause embarrassment if put in effect. Mr. Sadiq Ali has not been able to produce before us any material on which we can say that there was any reciprocity between India and Pakistan in the matter of examination of witness on commission.

3. For the reasons given above wehave seen no force in this application which weaccordingly dismiss. The stay order is discharged. The record or the case would be sent backto the Court below for trial of the suit.


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