Patna High Court
Srimati Sabitri Thakurain vs Suraj Mohan Thakur And Ors. on 13 February, 1928
Equivalent citations: 115IND. CAS.240, AIR 1929 PATNA 101
JUDGMENT Ross, J.
1. This is an application by the plaintiff, the widow of Ugramohan Thakur, in a suit against the executor of his Will and the legatees. It appears that on the 24th of September 1927 a commission was issued at the instance of the defendants to examine Doctor Ganganath Jha on Mithila Law. The cross-examination of this witness began on the 13th of October and on that date the executor Mr. Savi died. Definite information of his death was not received by the party until the 19th and on the 20th this fact was brought to the notice of the Commissioner who sent a telegram to the Subordinate Judge asking for orders and he required the parties to appear before him on the 21st at 8 P.M. in respect of the reply to the telegram, When the parties appeared at that date and hour no reply had been received and the Commissioner required the plaintiff's Pleader to continue the cross-examination. As his senior had left, the junior Pleader said that he had no instructions whereupon the Commissioner permitted the witness to be re-examined and forwarded the evidence to the Court.
2. Now it is clear that from the moment Mr. Sari died the suit was no longer properly constituted until steps had been taken for the representation either of Mr. Savi if he was sued in his personal capacity, or of the estate if he was sued as executor. In point of fact substitution had been made for Mr. Savi in both capacities. His personal representatives have been added as parties as he had been sued as a trespasser and an administrator to the estate has been appointed in his place. It follows plainly that the proceedings before the Commissioner after the 13th of October were invalid and illegal and that the commission which has been returned to the Subordinate Judge has not been duly executed and consequently, the evidence taken by the Commissioner cannot be read. It follows from this that this evidence must be deleted from the record. It will be open to the parties or any of them to apply for the issue of a fresh commission for the examination of Doctor Ganganath Jha, and Mr. Pugh on behalf of the plaintiff undertakes not to oppose any such application if made with reasonable promptitude.
3. It was suggested on behalf to the opposite party that the proper order for this Court to make is that the commission which has been imperfectly executed should be ordered to be perfected by the completion of the cross-examination from the stage which it had reached on the 13th of October, but, in my opinion, as the commission has been returned no further action can be taken under the writ and it is necessary that a fresh writ should be issued if the learned Subordinate Judge so decides.
4. Costs of the commission will be costs in the suit and the petitioner is entitled to the costs of the present application; hearing fee three gold mohurs.
5. Let the order go down at once.