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A. Marcalline Fernando Vs. St. Francis Xavior Church, Kottah by Present Parish Priest Rev. Father S. Barnabas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 547 of 1959
Judge
Reported inAIR1961Mad31; (1960)2MLJ349
ActsCode of Civil Procedure (CPC) , 1908 - Sections 133 - Order 26, Rules 1 and 4
AppellantA. Marcalline Fernando
RespondentSt. Francis Xavior Church, Kottah by Present Parish Priest Rev. Father S. Barnabas
Appellant AdvocateV. Srinivasan, Adv.
Respondent AdvocateA.P.C. Albuquerque, Adv.
DispositionPetition allowed
Cases Referredand Chotalal v. Mancharlal Nahdial
Excerpt:
.....of a commission for examination of a party or witness is purely a matter of..........reason advanced for justifying the issue of a commission, are both incorrect. the examination of a witness on commission is not an alternative to an examination in court, so as to vest in a court a power to issue a commission in all cases where it was apparent that the witness is likely to speak the truth. one of the fundamental rules of procedure in judicial trials is that the judge who is charged with the decision of a case should himself hear the evidence. a finding of fact arrived at by a judge who himself saw and heard all the witnesses is of greater value than that by one who did not do so.the impression that could be gathered by a judge in an oral examination of witnesses is not merely the result of the answers given by them but several un-defiriable matters like the manner of.....
Judgment:
ORDER

Ramachandra Iyer, J.

1. This is a petition to revise the order of the District Munsif of Nagarcoil in I. A. No. 2654 of 1958 in D. S. No. 275 of 1958, issuing a commissioner for the examination of the Bishop of Kottar. The lower Court has held that such examination is authorised Under the provisions of Order 26 Rule 1 read with Section 183 C. P. C. It is, however, not the case of the respondent (the petitioner in the lower court) that the Bishop of Kottar is either exempted under the Civil Procedure Code, 1908 from attending court or is unable to attend court, by reason of any sickness or infirmity. The only ground urged is that he is a person in exalted position, being a spiritual head and dignitary of the church, and as such, should not be compelled to appear in court. The learned District Munsif, who accepted the contention, observed thus:

'The only ground in favour of the respondent is his allegation in his order that truth can be found only if the person sought to be examined is examined in court. In this respect that person being a cultured person with a deep religious background can be expected to speak only the truth. There is no necessity to find whether the witness is speaking the truth as in the case of witnesses who frequently are in the habit of resorting the courts for giving evidence'.

The approach to the question, as well as the reason advanced for justifying the issue of a commission, are both incorrect. The examination of a witness on commission is not an alternative to an examination in court, so as to vest in a court a power to issue a commission in all cases where it was apparent that the witness is likely to speak the truth. One of the fundamental rules of procedure in judicial trials is that the Judge who is charged with the decision of a case should himself hear the evidence. A finding of fact arrived at by a Judge who himself saw and heard all the witnesses is of greater value than that by one who did not do so.

The impression that could be gathered by a Judge in an oral examination of witnesses is not merely the result of the answers given by them but several un-defiriable matters like the manner of giving evidence, the immediate reaction to question etc. The Civil Procedure Code statutorily provides for the cases in which examination of witnesses can be done on commission. Section 133 provides exemption from personal appearance in regard to certain persons. It is not contended that the Bishop is one of thoso persons exempted under Section 133 C. P. C. Nor is his case covered by the provisions Order 26 Rule 1. or Rule 4 C. P. C. If the conditions laid down in those provisions are not satisfied, the court would have no jurisdiction to delegate the examination of witnesses to a commissioner on the supposed theory that evidence in court is necessary only in case where a witness would speak an untruth elsewhere.

Nor can I subscribe to the proposition that there is a presumption in the case of certain witnesses that they would always speak truth. The question whether a witness is speaking the truth, is not a matter of assumption or presumption but one for determination after the evidence is taken and the matter judged in the light of the circumstances. While a court might be slow to presume that a man of culture is speaking an untruth' it will be abdicating its functions if it were to hold in advance that what he might say would be the truth.

Estimable persons who might not give false evidence might have given such evidence either by mistake, bias or other influence and it is the function ofthe court to assess the worth of such testimony.There is no difference so far as courts are concerned whether the evidence is given by the meanest citizen or the highest spiritual dignitary. In Pana-chand Chotalal v. Mancharlal Nahdial, : AIR1917Bom155 it was held that a reli-gious preceptor who was a pavty to the suit was nobentitled, by reason merely of his rank, to be examined on commission.

2. Under the provisions of Section 133 C. P. C., prior to its amendment by Act 66 of 1956, there was a power vested in the State Government to exempt, by notification, from personal appearance in court any person whose rank, in the opinion of such Government, entitled him to the Privilege of exemption. That provision has now been repealed by reason of the amendment. Except in cases covered by Sections 132 and 133 there can be no exemption from appearace in court. The mere reason that a witness, by reason of his culture and background, could be expected to speak the truth, whether examined on commission or before court, would not be sufficient to entitle him for examination on commission.

3. Yet another reason is given by the lower court. When Nagarcoil was part of the Travancore State, His Highness the Maharajah of Travancore had exempted the Bishop from personal attendance In court under Section 133 of the Travancore Civil Procedure Code, and such exemption would avail even now. The lower court failed to notice that the issue of a commission for examination of a party or witness is purely a matter of procedure; no party or witness can be said to have any vested right in such procedure. The exemption that was granted by the Maharajah of Travancore would enure only so long as the Travancore Civil Procedure Code, under which it was granted, was in force.

The Civil Procedure Code, of 1908, applies to all the States in the Indian Union, and exemption granted under the Travancore Civil Procedure Code would no longer avail, in the absence of any statutory safeguard preserving the rights secured under that Code. As pointed out already, Act 66 of 1950 has repealed the provision, regarding the Government's right to exempt certain person from appearance in court, and it is not possible for any State Government, by notification, to exempt any person from such appearance. The order of the lower court issuing a commission cannot, therefore, be sustained, arid it is set aside.

4. This civil revision petition is allowed with costs.


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