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Ramalinga Iyar Vs. Sankaranarayana Ayyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1929Mad192
AppellantRamalinga Iyar
RespondentSankaranarayana Ayyar
Cases ReferredBon Behari v. Satish Kantha A.I.R.
Excerpt:
.....to ask that he should be examined on commission outside the jurisdiction of the trying court. a medical certificate was put in on 5th february 1924 to the effect that defendant had been ailing for about a month and had grown weak, that he required rest and medication for a length of time and would not be able to undertake any journey within two months. the certificate about defendant 2 stated that he was suffering from dysentery and was unable to move about and that it would take one month more to recover perfectly. panohanan therefore, was as regards one witness a clear violation of order 26, rule 8 without any reason at all, and as regards the other witness a failure at least to keep this rule in' sight. given the fact that the court is satisfied under rule 1, order 26, that the..........it is clear that the order was granted on this ground. what is sought to be made out is that the medical certificate and the evidence before the court did not justify the court's conclusion. i am therefore doubtful whether under such circumstances a revision petition will lie at all.3. however, i will deal with the medical certificate and with the order. i find it difficult to accept the contention of the petitioner's advocate that the power of the court to issue commissions is more restricted under order 26, rule 4, than it is under order 26, rule 1. prima facie as the text stands, it is rule 1 which obviously introduces restrictions which are not found under rule 4 (1) (a), and most of the cases which the learned advocate for the petitioner cited before me to support his view have.....
Judgment:

Walsh, J.

1. This is a petition to revise the order of the District Munsif of Dharapuram in I. A. No. 338 of 1928 in O.S. No. 64 of 1928 to examine a witness, on commission. It is not denied that the witness lives beyond the jurisdiction of the District Munsif's Court and beyond the limits under which he is compellable to attend and give evidence in person under Order 16, Rule 19, Civil P.C. The order therefore, is one passed under Order 26, Rule 4, though the reason for passing the order is the alleged ill-health of the witness. The petitioner claims some property as having come to him from his father; the defendant claims it as having bought it from the witness in question. The latter is an aged High Court Vakil who has retired from practice. The plaintiff has summoned him as his witness to show, 1 understand, that the sale-deed was executed in the name of the defendant for plaintiff's' benefit. The witness certainly appears to be an important witness in the case. The question is whether the order of the District Munsif is one that can or ought to be revised. This is not a case where the reasons on which the Court has acted, if they were true, would not be amongst the grounds under which a commission could be issued under this order. The cases quoted, Somasundaram Chettiar v. Manicka Vasaka Desika Gnana Sammanda Pandarasannadhi [1908] 31 Mad. 60 and Sreenivasa v. Ranga : AIR1927Mad524 , are cases where the reasons given, even if true, did not authorise a commission being issued. In Somasundaram Chettiar v. Manicka Vasaka Desika Gnana Sammanda Pandarasannadhi [1908] 31 Mad. 60, a commission was issued because the witness represented

that he personally knew nothing of the matters connected with the case, that his evidence was unnecessary, that it had not been the practice for him to appear before the Court and give evidence and that he had been examined on commission in several cases by this and other Courts.

2. In : AIR1927Mad524 , the Court granted the commission as it simply found that the witnesses were old. In these cases, there was evidently an order without jurisdiction which could be interfered with in revision. In the present case, the application for commission was made on the ground that the witness was too ill to go to Court and it is clear that the order was granted on this ground. What is sought to be made out is that the medical certificate and the evidence before the Court did not justify the Court's conclusion. I am therefore doubtful whether under such circumstances a revision petition will lie at all.

3. However, I will deal with the medical certificate and with the order. I find it difficult to accept the contention of the petitioner's advocate that the power of the Court to issue commissions is more restricted under Order 26, Rule 4, than it is under Order 26, Rule 1. Prima facie as the text stands, it is Rule 1 which obviously introduces restrictions which are not found under Rule 4 (1) (a), and most of the cases which the learned advocate for the petitioner cited before me to support his view have been cases where the plaintiff himself asked to be examined on commission. That is obviously a different matter. The plaintiff having his choice of venue is clearly not entitled, except for very strong reasons, to ask that he should be examined on commission outside the jurisdiction of the trying Court. The argument for the petitioner on this point as I understood it, was that, as the party has no legal right that summons should be issued to his witnesses if they are not compellable to give evidence, therefore the Court should be even more loath to grant commissions on such applications than it would be if the witness lived within its jurisdiction. I have not found such a doctrine laid down anywhere and it does not appear to me to be quite reasonable. At the same time it is clear that the Court, in allowing a witness who is capable of appearing for being examined in Court to be examined on commission is depriving the opposite party of an important privilege and may perhaps be said to be acting without jurisdiction.

4. The only case quoted where the person to be examined on commission under Order 26, Rule 4, was not the plaintiff is Panohkari v. Panchanan : AIR1924Cal971 , but the matter there was quite different. The parties sought to be examined were the two defendants and it was the plaintiff who wished to examine them. A medical certificate was put in on 5th February 1924 to the effect that defendant had been ailing for about a month and had grown weak, that he required rest and medication for a length of time and would not be able to undertake any journey within two months. The certificate about defendant 2 stated that he was suffering from dysentery and was unable to move about and that it would take one month more to recover perfectly. A commission was issued as prayed for on 22nd February 1924. On 13th March 1924, the petitioner applied for a reconsideration of the said order but the learned Munsif refused the application with the following order:

Plaintiff's petition for reconsidering the order passed regarding the issue of commission cannot be entertained now as the commission fee (has been) deposited and the interrogatories filed.

5. In that case the medical certificate granted to defendant 1 was dated 30th January 1924 and it had been merely stated therein that he would not be able to undertake any journey within two months. The medical certificate for defendant 2 was dated 1st February 1924, and stated that he would take a month to recover. Therefore on 13th March 1924, when the application for the reconsideration of the order issuing the commission was put in, there was no evidence at all that defendant 2 was too ill to appear in Court and as regards 1st defendant it was quite possible that he was able to do so and at the most he should have been able to attend Court on 30th March 1924. Order 26, Rule 8, is very clear that evidence taken on commission should not be read as evidence in the suit without the consent of the party against whom the same is offered, unless for the reasons stated in Sub-clause (a) or unless under Sub-clause (b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in Sub-clause (a). Whatever practice may have grown up, the terms of the section are clear and his Lordship the Chief Justice has remarked in Phanindra Krishna v. Promatha Nath : AIR1928Cal421 that the Privy Council has laid down that they must be followed. The case Panohkari v. Panohanan therefore, was as regards one witness a clear violation of Order 26, Rule 8 without any reason at all, and as regards the other witness a failure at least to keep this rule in' sight. In the present case, it is not and cannot possibly be contended that in considering the medical evidence that the witness was too ill to attend Court, a more stringent view should have been taken if the witness was living at such a distance from the Court that he was not compellable by summons than if ho lived within its jurisdiction. In this case, the witness sought to be summoned is admittedly a retired High Court vakil aged about 60 living in a somewhat remote spot about 66 miles from the Court. (The judgment then gave the substance of the medical certificate and of the judgment of the lower Court and proceeded.) The finding is in substance that the witness is unable from illness to attend the Court. It cannot be said that such a finding has no basis looking to the medical certificate. It has been argued that none of the three complaints from which the medical certificate states that the man is suffering is by itself very dangerous or fatal, but it is quite possible that the complication of all the three may be dangerous. At any rate, there is the distinct statement that

his condition of health is such that any. travel or physical strain would be extremely prejudicial to his safety

and the meaning of these words, I take it, is that he will run a serious risk of death by being forced to attend Court. I do not think that the objection that it was not the witness himself that applied for his examination on commission is of any importance. In Phanindra Krishna v. Promath Nath : AIR1928Cal421 , his Lordship Rankin, C.J., observes:

Given the fact that the Court is satisfied under Rule 1, Order 26, that the person is sick and unable to attend Court and that the Court has exercised its discretion as to whether in those circumstances a commission should issue and has issued a commission, I am clearly of opinion that that discretion cannot be revised under Section 115, Civil P.C. whether the judgment of the Court below on this interlocutory application consists of a complete treatise on the subject or an incomplete treatise on the subject.

6. The learned advocate for the petitioner has placed great reliance on some remarks of the Privy Council in Bon Behari v. Satish Kantha A.I.R. 1923 P.C. 73. It may be noticed that that was a regular appeal. The question whether the order passed could have been revised was not in question and the principal matter was the credibility to be attached to the evidence given on commission under such circumstances. It is not clear from the report whether the order for commission was issued under Order 26, Rule 1, or Order 26, Rule 4. It is impossible to say what the medical certificate in the case was, for it was not even before the Privy Council. Their Lordships state:

the date of the medical certificate mentioned in this order of 2nd December is not given. No such document is to be found in the printed book, but in the list of omitted exhibits at p.20 is to be found this description: 'Medical certificate given Satish Chandra Chatterji, dated 19th July 1916.

7. The order of the Subordinate Judge passed on 21st June 1916 was as follows:

I think the defendant should not be compelled to attend Court for deposing as he has got a big hydropele from which watery substance comes and he is not in a position to move to a distance from his house.

8. Their Lordships observed this was not a fit case for exempting the witness from attending Court and that he might have been provided with a chair in Court. In the absence of the medical certificate in this case, especially as the learned Subordinate Judge did not find in terms that the witness was too ill to attend or was physically unable to attend Court, I do not think that this case is of much use where this Court is asked to interfere in revision against an order based on a medical certificate which clearly implies that the witness is suffering from sickness and infirmity and unable to attend Court.

9. Something has been mentioned by the petitioner's advocate that this Court might order the transfer of the suit to the Court of the District Munsif of Kulitalai which is apparently only three miles away from the residence of the witness sought to be examined. I have, however, no such application before me, and if it is to be made it must be made by a separate motion. I find no reason to interfere in revision with the order passed. The petition fails and is dismissed with costs.


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