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Subbaraya Padayachi and anr. Vs. Kozhandaivel Udayar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1948)2MLJ567
AppellantSubbaraya Padayachi and anr.
RespondentKozhandaivel Udayar
Cases ReferredJagannadha Sastri v. Sarathambal Ammal
Excerpt:
- - for the commission who resides beyond the limit fixed under order 16, rule 19 (a), civil procedure code, a commission should issue as a matter of right, unless the court is satisfied that a party is merely abusing its authority to issue process and (2) that it is not for the court to decide whether the party will be benefited thereby or not, that is a matter entirely for the party......a witness beyond the prescribed distance. the same principle applies even in the case of an expert witness. in sitamma v. subraya : (1911)21mlj889 . abdur rahim and sundara aiyar, jj., recognised that principle and stated that the defendants were entitled as of right to the issue of commission apart from the question whether they would have ultimately benefited by it. the same principle is followed and applied in jagannadha sastri v. sarathambal ammal (1922) 44 m.l.j. 202 : i.l.r. 46 mad. 574. wallace, j., after considering the various decisions cited before him expressed his conclusion as follows:the balance of authority is in favour of the view that (1) ordinarily, in the case of a witness not under the control of the party asking; for the commission who resides beyond the limit.....
Judgment:

Subba Rao, J.

1. This is a revision against the order of the lower Court dismissing the application to issue a commission to examine Mr. Dixit, Government Examiner of questioned documents, Central Provinces and Berar, on commission. The suit was on a promissory note. The defence was that the endorsement was a forgery. The respondent filed an application I.A. No. 223 of 1947 for issuing a commission to Mr. Dixit, Government Examiner of questioned documents, Central Provinces and Berar. The learned District Munsiff dismissed the application on the ground that both under the rules and as a matter of expediency it was desirable that the suit documents should be examined by the Government Examiner of the Central Government.

2. A party to a suit has a right to ask for the issue of a commission to examine a witness beyond the prescribed distance. The same principle applies even in the case of an expert witness. In Sitamma v. Subraya : (1911)21MLJ889 . Abdur Rahim and Sundara Aiyar, JJ., recognised that principle and stated that the defendants were entitled as of right to the issue of commission apart from the question whether they would have ultimately benefited by it. The same principle is followed and applied in Jagannadha Sastri v. Sarathambal Ammal (1922) 44 M.L.J. 202 : I.L.R. 46 Mad. 574. Wallace, J., after considering the various decisions cited before him expressed his conclusion as follows:

The balance of authority is in favour of the view that (1) ordinarily, in the case of a witness not under the control of the party asking; for the commission who resides beyond the limit fixed under Order 16, Rule 19 (A), Civil Procedure Code, a commission should issue as a matter of right, unless the Court is satisfied that a party is merely abusing its authority to issue process and (2) that it is not for the Court to decide whether the party will be benefited thereby or not, that is a matter entirely for the party.

3. With great respect I agree with this observation. In a recent decision of this Court in Palaniappa Chettiar v. Narayanan Chettiar : AIR1946Mad331 , Bell, J., considered the same question. Referring to Jagannadha Sastri v. Sarathambal Ammal (1922) 44 M.L.J. 202 : I.L.R. 46 Mad. 574, the learned Judge observes at page 180:

In my opinion it is a matter of discretion for the Court in the circumstances of each particular case.

4. That observation in that case is a mere obiter as the finding in that case was that the particular application was an abuse of the process of Court. I therefore hold that the petitioner is entitled to examine the expert, Mr. Dixit, on commission. The reasons given by the learned District Munsiff do not in any way indicate that the petitioner was guilty of an abuse of the process of Court. It is common case that the expert is necessary and the only dispute is whether that expert should be the Nagpur or Delhi expert. It is impossible to say when a petitioner is entitled to select his own witness, and he selects one of the two witnesses that are available, that he is guilty of an abuse of the process of Court. Therefore the lower Court should have allowed the application No. 223 of 1947. The lower Court's order is set aside. The revision petition is allowed with costs.


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