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Visvanathan Chetty Vs. Somasundaram Chetty - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in78Ind.Cas.407
AppellantVisvanathan Chetty
RespondentSomasundaram Chetty
Cases ReferredSarat Kumar Boy v. Bam Chandra Chatterji
Excerpt:
civil procedure code (act v of 1908), order xxvi, rule 4 - defendant residing beyond court's jurisdiction, examination of--refusal of court to issue commission--high court, whether can interfere--revision. - - the watching of his demeanor which the lower court refers to in support of its order is not a sufficiently strong ground to justify the dragging of the defendant all the way from rangoon to ramnad......years. he was served with summons there. the plaintiff himself was a resident of rangoon and was examined on commission himself there. in these circumstances, the defendant should have been allowed to be examined on commission. the watching of his demeanor which the lower court refers to in support of its order is not a sufficiently strong ground to justify the dragging of the defendant all the way from rangoon to ramnad. i would, therefore, set aside the order of the munsif and direct him to issue a commission to examine the defendant in rangoon as prayed by him.2. it was argued that this was not a proper case for intervention in revision and reliance was placed on the observations of their lordships in bala krishn-i udayarv. vasudeva aiyar 40 ind. cas. 660 : 40 m. 793 : 16; a.l.j......
Judgment:

Krishnan, J.

1. In this case the District Munsif has refused to issue a commission to examine the 2nd defendant as his own witness, and the revision is against that order. The learned Munsif dismissed the petitioner's petition rather summarily without noticing the importance of the fact that the defendant was the person applying and without his attention having been drawn to the cases which show in what manner a Court should deal with an application of a defendant to examine himself as a witness on commission as distinguished from an application by a plaintiff. A reference to the case Boss v. Woodford (1894) 1 Ch. 88 : 63 L.J. Ch. 191 : 8 B. 20 : 70 L.T. 22 : 42 W.B. 188 and to the ease Sarat Kumar Boy v. Bam Chandra Chatterji 68 Ind. Cas. 9 : 35 C.L.J. 78; A.I.R.(1922) (Cal.) 42 will show how a defendant's application should be dealt with. In this case a defendant has been a resident of Rangoon with his family for many years. He was served with summons there. The plaintiff himself was a resident of Rangoon and was examined on commission himself there. In these circumstances, the defendant should have been allowed to be examined on commission. The watching of his demeanor which the lower Court refers to in support of its order is not a sufficiently strong ground to justify the dragging of the defendant all the way from Rangoon to Ramnad. I would, therefore, set aside the order of the Munsif and direct him to issue a commission to examine the defendant in Rangoon as prayed by him.

2. It was argued that this was not a proper case for intervention in revision and reliance was placed on the observations of their Lordships in Bala Krishn-i Udayarv. Vasudeva Aiyar 40 Ind. Cas. 660 : 40 M. 793 : 16; A.L.J. 646 : 2 P.L.W. 101 : 83 M.L.J. 69 : 26 C.L.J. 143 : 19 Bom. L.R. 715; (1917) M.W.N. 628 : 6 L.W. 601 : 22 C.W.N. 50 : 11 Bur. L.T. 48 : 44 I.A. 261 .

3. Their Lordships recognise irregular exercise of jurisdiction as a ground for interference as the section also says. I think this is a case of such irregular exercise of the lower Court's powers in examine witnesses. In refusing to examine defendant on commission in the circumstance of this case, the Court is acting with material irregularity, as it might lead to his evidence being lost to the defendant altogether. The objection that it is not open to this Court to act in revision is, therefore, overruled.

4. The respondent will pay the costs of the petitioner in this Civil Revision Petition but I do not interfere with the order as to costs in the lower Court.


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