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Moodananchu Borrayya and ors. Vs. Kasa Vajjulu Ramakoti Sastri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1948)2MLJ641
AppellantMoodananchu Borrayya and ors.
RespondentKasa Vajjulu Ramakoti Sastri
Excerpt:
.....the third contention was that one of the witnesses sought to be examined on commission was the vendor of the properties to the plaintiff, and stood in no better footing than the plaintiff, and should not have been allowed to be examined on commission. 4. all the contentions have..........a series of buses, changing from one to the other. there are, it is said, buses from markapur to cumbum, cumbum to cuddappah and cuddappah to nandalur. it is obvious however, that a man going from markapur to cumbum in a bus may miss his bus at cumbum for cuddappah and again at cuddappah for nandalur. it is not like changing trains where one ticket can be bought and any connecting train got into. in these days, where buses are overcrowded, a man may even be detained for a day in a strange place if he undertakes such a hazardous journey of great inconvenience. i am of opinion that ' the established public conveyance ' mentioned in order xvi, rule 19, civil procedure code does not mean such disconnected buses belonging to different companies and with no certainty of continuous travel.2......
Judgment:

Panchapakesa Ayyar, J.

1. The only point for determination in this petition is whether the lower Court erred in law in ordering some witnesses cited by the plaintiff to be examined on commission. The learned Counsel for the petitioners urged that the lower Court erred in three ways. The first was that the witnesses in question were living in Nandalur which, though about 300 miles by train from Markapur where the lower Court is situated, is less than 200 miles from Markapur if a person is to travel by buses, and that Order XVI, Rule 19 (b) Civil Procedure Code, covers also other ' established public conveyance,' like buses. I cannot agree. There is no ' established public conveyance ' or ' through buses ' from Markapur to Nandalur, and not even a certainty of catching a series of buses, changing from one to the other. There are, it is said, buses from Markapur to Cumbum, Cumbum to Cuddappah and Cuddappah to Nandalur. It is obvious however, that a man going from Markapur to Cumbum in a bus may miss his bus at Cumbum for Cuddappah and again at Cuddappah for Nandalur. It is not like changing trains where one ticket can be bought and any connecting train got into. In these days, where buses are overcrowded, a man may even be detained for a day in a strange place if he undertakes such a hazardous journey of great inconvenience. I am of opinion that ' the established public conveyance ' mentioned in Order XVI, Rule 19, Civil Procedure Code does not mean such disconnected buses belonging to different companies and with no certainty of continuous travel.

2. The second contention was that the application was belated and should not have been granted. But I do not see any such gross delay here; and, after all, the trial Court is a better judge of the delay than the parties.

3. The third contention was that one of the witnesses sought to be examined on commission was the vendor of the properties to the plaintiff, and stood in no better footing than the plaintiff, and should not have been allowed to be examined on commission. I cannot agree. The law does not recognise ' equivalents to the plaintiff' and ' equivalents to the defendants ' and the rules must be strictly construed. Any witness, however important, is entitled to ask to be examined on commission if he lives outside its jurisdiction in a place more than 200 miles from the Court house, as here, and the Court in which the application for commission is filed sees no fraud or mala fides in such an application.

4. All the contentions have failed: The lower Court's order was, in my opinion, correct. This petition deserves to be and is hereby dismissed with costs.


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