Patna High Court
Mst. Anoora vs Babu Sagarmal And Anr. on 2 January, 1963
Equivalent citations: AIR1963PAT213, AIR 1963 PATNA 213
ORDER R.K. Choudhary, J.
1. Defendant No. 1 is the petitioner in this case. Opposite Party No. 1 filed a suit for recovery of a certain amount of money based on a handnote against the petitioner and Opposite Party No. 2. The handnote is said to have been executed by the deceased husband of the petitioner. The defence of the petitioner is that the handnote in question is a forged document. This handnote was sent to a Handwriting Expert at Simla, who gave his opinion that it was a forged document. The petitioner, therefore, made an application for examination of the said expert at Simla on commission through the Simla court. The plaintiff-opposite party No. 1 objected to the issue of commission and made a prayer that, in case a commission was issued, it should be issued on payment of cost to the plaintiff for taking his lawyers to Simla. The learned Munsif allowed the prayer of the Petitioner for examination of the expert on commission by the Simla court, but directed her to deposit a sum of Rs. 400 as bring the cost of the plaintiff for taking his lawyers to Simla. Being aggrieved by this portion of the order of the Court below, the present application has been filed by the defendant No. 1.
2. The law relating to issue of commission is provided in Section 75 of the Code of Civil Procedure, according to which, subject to such conditions and limitations as may be prescribed, the court may issue a commission to examine any person. The conditions and limitations contemplated by the above section are to be found in Order 26 of the Code of Civil Procedure. Rules 1 and 4 of that Order make provisions for different types of cases in which witnesses have to be examined on commission. Rule 15 of the said Order lays down that, before issuing any commission under this order, the court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be within a time to be fixed, paid hate, court by the party at whose instance or for whose benefit the commission is issued. It is contended on behalf of the plaintiff opposite party that, under the provisions of this rule, the court lad ample jurisdiction to pass an order directing the petitioner to deposit the costs of the plaintiff to be incurred by him in attending the examination of the witness on commission, and it is submitted that the order passed by the court below was perfectly justified and within its jurisdiction. On behalf of the petitioner, however, it is urged that the petitioner had a right to have the Simla expert examined on commission, and, as such, the court had no jurisdiction to impose any condition on the petitioner in allowing her prayer for issue of & commission. It is also contended on behalf of the petitioner that the expenses of the commission required to be deposited under the above Rule 15 of Order 26 do not include the cost of the adversary and are limited to the actual cost incurred by the Commissioner together with such other incidental cost which may be necessary for the Commissioner to spend for the execution of the commission. In my opinion the arguments put forward on behalf of the petitioner are well founded and must prevail.
3. The handnote in question was examined by an expert of Simla. No objection was raised on behalf of the plaintiff for its examination by an expert of a distant place. The report of the expert appears to be in favour of the petitioner, and, in order to put it in evidence, it is necessary to get it proved by examination of the said expert. The expert is residing admittedly at a distance of more than 200 miles from the court where he should be examined. Order 16, Rule 19, of the Code of Civil Procedure provides that no one shall be ordered to attend in person to give evidence, if he resides more than 200 miles away from the court-house. Thus, in order to examine the expert-witness residing at Simla, his attendance could not be compelled to be procured and the only way in which his evidence could be placed on record was by issue of a commission, and the party desiring to examine him was entitled to have its prayer allowed as a matter of right. The court had no option to refuse the prayer for examining such a witness on commission. It was, therefore, not possible for the court to put the party, desiring to examine the witness on commission, to any term which is not specifically provided elsewhere in the Code of Civil Procedure. The provision for putting such a party to any term is laid down, as already stated, in Order 26, Rule 15, of the Code of Civil Procedure, according to which the court, before issuing a commission, could compel the petitioner to deposit any reasonable amount for the expenses of the commission. Up to this extent, there appears to be no dispute between the parties. But the real controversy between them is that while according to the petitioner the expression "expenses of the commission" means only such expenses as are necessary for the issue of the commission to the commissioner, including such incidental cost which the commissioner may require for executing the commission, according to the plaintiff opposite party it also includes the cost as may be fixed by the court, which the adversary has to incur in attending the commission work. This, the real controversy between the parties rests on this interpretation of the expression "expenses of the commission".
4. The court below passed the Impugned order on the authority of Ghanshyam Das v. Kisturibala Debi, AIR 1936 Pat 33 which itself is based on an earlier unreported decision of this court in Villiers Ltd. v. C.J. Smith, Civil Revn. No. 102 of 1926, D/- 11th May, 1926. In the unreported case, the petitioner firm, which was a defendant in the suit, wished to call as a witness on its behalf the sixth defendant, who was residing at a place which was beyond the jurisdiction of the court where he was to be examined, and it was stated on its behalf that it was unable to obtain voluntary attendance of that witness; and an application was made to examine him on commission. The court granted the prayer and directed it to deposit a certain amount as cost of the commissioner as well as a sum of Rs. 4,000/- as security for such costs as may presumably be payable to the plaintiff in that suit in any event. In the High Court, in an application in civil revision filed on behalf of the applicant, the petitioner firm challenged the order passed by the court for depositing the cost of the plaintiff. Though under the law the attendance of that witness could not be compelled to be proceed, it appears that this court was under the impression that it was the duty of the applicant firm to procure the attendance of that witness and that if it was unable to do so, it was in effect forcing the other party to cross-examine that witness when that witness was examined on commission. The judgment of this court proceeds on the footing that a favour was shown to the applicant firm by issuing the commission, and, therefore, the court was justified in putting it to terms. The attention of the learned judge who gave the judgment in that case was not drawn to the provisions of Order 16, Rule 19, of the Code of Civil Procedure which made it obligatory on the court to issue the commission for examination of such a witness. The case of AIR 1936 Pat 33 gives no fresh reasoning for the decision but entirely relies on the above unreported case. There is yet another case of this court reported in AIR 1926 Pat 277 Fariduddin Ahmad v. Abdul Wahab, in which this Court passed an order directing the party applying for issue of commission to deposit the cost of the adversary. There is nothing in the judgment which can show as to what led his Lordship to make such an order. It is at least clear from the judgment that neither the provisions of Order 16, Rule 19, nor Order 26, Rule 15, of the Code of Civil Procedure were brought to the notice of the learned Judge. For these reasons, these cases have no application to the facts of the present case.
Reference has been made to two decisions of the Calcutta High Court, namely, Nirpendra Bhusan Roy v. Pramatha Bhusan Deb Ray, AIR 1927 Cal 907 and Kumar Sarat Kumar Ray v. Ram Chandra Chatterjee, AIR 1922 Cal 42. In the first case, there was no question of issue of a commission to a witness whose attendance could not be compelled by the court. That was a case where a commission had to be issued for local investigation. It was held in that case that Rule 15 of Order 26 of the Code of Civil Procedure did not prevent the court from making any term that it chose, as a condition precedent. That case, therefore, has no application to the present case. In the second case, the question of a defendant being examined on commission was involved. The principle applying to the issue of a commission for examination of a defendant cannot be applied to the issue of a commission for examination of a witness who is not a party to the proceeding and whose attendance could not be compelled by the court. That case also, therefore, has no application to the facts of the present case.
5. On the other hand, there are a number of authorities supporting the view that the expression "expenses of the commission" does not include the cost of the adversary, but only includes the cost incurred for actual payment to the commissioner and incidental to the carrying out of the commission work. They also support the view that where a court is bound to issue a commission for examination of witness, the question of putting the party to any term, other than the terms provided in the Code, does not arise. As was observed, by Wanchoo, C. J. in Jiwibai v. Laxmichand Abasbhai, AIR 1955 Raj 32, with which I entirely agree, where a commission has to be Issued as a matter of course, as for example, when a witness resides more than 200 miles from the court-house, there is no question of allowing any sum as costs of the opposite party, but where the person applying for commission is not entitled as of right to get himself examined on commission, the court has the power to impose such terms, as it thinks fit, as to the expenses of the opposite party also in case the commission is issued. In Kanji Karsondas v. Nathubhai Khimji, AIR 1953 Bom 390, it was pointed out by Gajendragadkar, J., that "expenses of the commission" in Order 26, Rule 15, do not include costs of opponent's pleader or the cost which the opponent himself may have to incur to go to the place where the commissioner is going to examine witness, and that the expression denotes only the fees paid to the commissioner and other expenses directly incidental to the issue and execution of the commission. The same view has been taken in a Bench decision of the Madras High Court in the Tata Iron and Steel Co. Ltd, v. S. Kader Ibrahim Rowther, (S) A.I.R. 1955 Mad 654. The law on the point has been stated in that case as follows : "the expression 'expenses of the commission' in Order 26, Rule 15, Civil Procedure Code, does not include expenses of the opposite party" and "the court has no inherent power to travel outside Order 26, Rule 15, Civil Procedure Code, and impose conditions not warranted by that or any other specific statutory provision in that regard". The decisions of Travancore-Cochin High Court in Asanand Nanak Chand Aggarval v. C.A. Ayyathurai, AIR 1956 Trav-Co. 260 and of Orissa High Court in the Union of India v. Natabarlal Jayashankar, A.I.R. 1956 Orissa 65 are also to the same effect, so far as this point is concerned.
6. Even the provision of the General Rules and Circular Orders, Civil, Volume I, of this court gives support to the interpretation of the expression "expenses of the commission" as given in Order 26 Rule 15, of the Code of Civil Procedure. Rule 20, at page 130, Part V, Chapter I, gives the different items of expenses which have to be included in the expenses of the commission. There is no provision for cost of the opponent in this rule. On a plain reading of the provisions of Order 26, Rule 15, along with the provisions of Order 16, Rule 19, of the Code of Civil Procedure and the decisions referred to above, my confirmed view is that the court has no jurisdiction to put a party to term of paying the cost of its opponent while issuing a commission for examination of a witness whose attendance could not be compelled by the Court and the court was bound to issue a commission for his examination.
7. The result, therefore, is that this application succeeds and is allowed with costs. The order of the court below directing the petitioner to deposit a sum of Rs. 400/- being the cost of the plaintiff for issue of commission to examine the Simla expert is set aside. The commission for examination of the said witness will now issue on the petitioner depositing the cost of commission as directed by the court minus the amount of Rs. 400/- directed to be deposited by the petitioner for the cost of the plaintiff. Hearing fee Rs. 32/-. (8) Mr. Thakur Prasad, appearing for the plaintiff opposite party, however, submitted that his client would be seriously harassed by issuing the commission for examination of the witness at Simla and, as such, the cost of the commission should be the cost in the suit. This is a matter which the court will have to consider at the tune of allowing costs. It is not, therefore, necessary for me to (make?) any observation in this regard.