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A.R.P.R. Viswanathan Chety Vs. M.N.M. Somasundaram Chetty - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Reported inAIR1924Mad541
AppellantA.R.P.R. Viswanathan Chety
RespondentM.N.M. Somasundaram Chetty
Cases ReferredBalakrishna Udayar v. Vasudeva Aiyar
Excerpt:
- .....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 referes 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.....
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 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 of Rose v. Woodford [1894] 1 Ch. 38 and to the case Sara Kumar v. Ram Chandra 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 referes 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 page 799 of the case in Balakrishna Udayar v. Vasudeva Aiyar [1917] 40 Mad. 793.

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 examining witnesses. In refusing to examine defendant on commission in the circumstances 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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