Jagat Narayan, C.J.
1. This is a revision application by the defendant M/s. Jupiter General Insurance Co. Ltd. against an order of the Additional District Judge No. 1 Jaipur City, refusing to issue a commission for the examination of five witnesses residing in the United States of America.
2. The relevant facts are these. The plaintiff M/s. Dhandhia Jwellers of Jaipur sent a parcel of precious stones from Jaipur to Florida Diamond Brokers Inc., 467 Lincoln Road, Miami Beach, Florida through Mercantile National Bank. Florida. This parcel was insured for a sum of Rs. 12,000/- with the defendant and for a sum of Rs. 300/- with the Post Office.
3. The case of the plaintiff is thatthe parcel was never delivered to the consignee but it was revealed on further enquiry that it was delivered to M/s. Jordon Marsh Co. Florida. The plaintiff thereupon claimed Rs. 17,000/- from the defendant.
4. The defendant through its lawyer entered into correspondence with the Post Office, Florida, with Florida Diamond Brokers Inc., with M/s. Jordon Marsh Co. Florida, with the Indian Embassy in Washington and with Mercantile National Bank, Florida.
5. From this correspondence, it appears that the information previously given by the Post Office that the parcel was delivered to M/s. Jordon Marsh Co. Florida, was incorrect and that the parcel was refused by Florida Diamond Brokers Inc. and was then lost. The case of the defendant is that as the parcel was actually tendered to Florida Diamond Brokers Inc. its liability ceased. To prove this, it is necessary for it to examine the five witnesses who will be able to prove the correspondence which has taken place between the plaintiff and these persons as well as between the defendant and these persons.
6. The trial Court refused to Issue commission for the examination of the witnesses on commission for the reason that there is no reciprocal arrangement between India and United States of America regarding examination of witnesses on commission and as such, Courts in India cannot compel the Courts in United States of America to execute anycommission. Nor any officer of a Court in India or even in the office in United States of America is competent to record evidence on commission in the absence of such arrangements.
7. It was held by their Lordships of the Supreme Court in Filmistan Pvt. Ltd. Bombay v. Bhagwandas Santprakash, AIR 1971 SC 61 that Section 77 read with Section 75 empowers Court to issue letter of request to any person other than Court to examine witnesses residing at any place not within India and this power is not subject to any reciprocal agreement between the Governments. In the case before their Lordships of the Supreme Court the question as to whether evidence can be taken on oath under he above procedure was left open. The defendant has, however, filed a letter from the Government of India, Ministry of External Affairs, New Delhi, dated 4th November, 1971, which runs as follows :
'ToShri Jugal Kishore GuptaAdvocate Jaipur 4 'Sir.
I am directed to refer to your letter dated 19th October, 1971 on the subject mentioned above and to say no reciprocal arrangements are required with foreign Governments for examination of witnesses on commission in civil cases.
2. The normal procedure of correspondence is through diplomatic channels. Such letters of request are sent by the Indian Courts through the State Governments to the Ministry of External Affairs, After due scrutiny in the Ministry and ensuring that letters of requests are in he prescribed forms, such requests are forwarded to foreign Courts through the Indian Missions of the countries concerned for execution. The commission fees or execution of such letters of requests are deposited in the Indian Courts by he parties concerned and all the State Governments in India are already aware of the procedure. You may, therefore, request the Court concerned to ascertain the procedure from the State Government by quoting our two circular letters No F22(2)-Cons/58(Dal/69/l/96) dated the 8th June, 1960 and No. F441(16)/66 dated the 20th July, 1966 addressed to all State Governments. The Government of India, however, have not entered into reciprocal arrangements with any foreign country including the U. S. A. in this respect so far and such letters of requests are generally executed by the foreign Governments as a matter of international courtesy and vice-versa.'
If the above procedure is followed and evidence is recorded by a Court in the United States of America it will be recorded on oath. Of course, the letter of request for commission will not be issued to the Court in the United States ofAmerica. It will be issued in accordance with the procedure laid down in the above letter.
8. A preliminary objection was taken by Mr. P. N. Datt that the question is a discretionary one and there can be no interference in revision. In this particular case, the trial Court did not issue commission or a letter of request on the around that it had no jurisdiction to do so. A question of jurisdiction, therefore, arises in the present case. The preliminary objection has thus no force.
9. I accordingly, allow the revision application, set aside the order of the trial Court and direct it to issue a letter of request in accordance with the procedure laid down in the letter from the Government of India, Ministry of External Affairs, dated 4th November, 1971.