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Mahalakshmi Ammal Vs. Venkata Naicker and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad345
AppellantMahalakshmi Ammal
RespondentVenkata Naicker and anr.
Excerpt:
- - 'it is not clear that the witness is a resident of madras';on that ground, as well as on the ground that the application was vexatious, he dismissed it. the subordinate judge has not distinctly found whether the witness resides in madras or not; if he is satisfied that he resides in madras, then the plaintiff is entitled to the issue of a commission......a counter affidavit was filed, wherein it was stated that the witness was understood to be in the coimbatore district, where the suit had been instituted. the learned subordinate judge says: ' it is not clear that the witness is a resident of madras'; on that ground, as well as on the ground that the application was vexatious, he dismissed it. the subordinate judge has not distinctly found whether the witness resides in madras or not; and there is nothing to show that the application is vexatious. i set aside the order of the subordinate judge and remand the application to the lower court. it is not denied that the witness is a material one. the subordinate judge is at liberty to take fresh evidence if he is requested to do so as regards the residence of the witness. if he is satisfied.....
Judgment:

Madhavan Nair, J.

1. The plaintiff-petitioner asked the lower Court to issue a commission for examining one Srinivasa Aiyar on the ground that the witness was residing in Madras.

2. The application was supported by an affidavit stating this fact. A counter affidavit was filed, wherein it was stated that the witness was understood to be in the Coimbatore District, where the suit had been instituted. The learned Subordinate Judge says: ' It is not clear that the witness is a resident of Madras'; on that ground, as well as on the ground that the application was vexatious, he dismissed it. The Subordinate Judge has not distinctly found whether the witness resides in Madras or not; and there is nothing to show that the application is vexatious. I set aside the order of the Subordinate Judge and remand the application to the lower Court. It is not denied that the witness is a material one. The Subordinate Judge is at liberty to take fresh evidence if he is requested to do so as regards the residence of the witness. If he is satisfied that he resides in Madras, then the plaintiff is entitled to the issue of a commission. I do not make any order as to costs.


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