Allahabad High Court
Gambhir Mal Pandya vs George Anthony John on 1 January, 1800
Equivalent citations: AIR1934ALL37A
JUDGMENT Niamatullah, J.
1. These are two applications by the plaintiffs in suit No. 14 of 1932 pending in the Court of the Subordinate Judge, Agra. One is an application for revision of an interlocutory order, dated 4th January 1933, refusing to issue a commission for the examination of certain witnesses residing in England. The other prays for transfer of the case to some other Court. The latter is based principally on the allegation that the order of the learned Subordinate Judge, dated 4th January 1933, excluding important evidence, is one which, if persisted in, is not likely to result in a fair trial of the suit before him.
2. It appears that the suit was instituted on 20th February 1932. For reasons which it is not necessary to mention, issues were not framed till 15th December 1932,on which date the learned Judge recorded an order that the parties should apply for issue of commissions for examination of witnesses by 4th January 1933. The plaintiff applicant applied on that date for commissions being issued for examination of seven witnesses, three of whom were to be examined in India. As to these the learned Subordinate Judge granted the application. The remaining four, numbered in the application as 2, 3, 4 and 5, were said to be residing in England. Nos. 4 and 5 as two of the plaintiffs in the suit. The learned Subordinate Judge rejected the application for the examination of the aforesaid four witnesses on commission. His reasons for the refusal of the plaintiff's application are contained in the following passage:
This case was started in February 1932, and now a year later application is being made for the examination of the plaintiffs themselves on commission. This is an extraordinary state of things. During the course of one year the plaintiffs should have realized what their cage was, what they were to prove and how they were to prove it. Now for them to apply for commission for their own evidence in a country so far away as England, after all this lapse of time, is not a reasonable request, and I am not prepared to grant it.
3. The learned Subordinate Judge seems to have been of opinion that the plaintiff's should have applied for commission for the examination of two of themselves after the institution of the suit and before the settlement of issues. In cases which are ordinarily fixed for final disposal the plaintiff may be expected to adopt the course insisted on by the learned Subordinate Judge; but in a case of this nature it is difficult for any of the parties to examine important witnesses like the parties themselves before all the pleadings in the case have been crystallized. As already stated, the case was fixed for settlement of issues on 17th December 1932. It was not unreasonable for the parties to assume that statements in pleadings might be recorded before, or at the time when the issues were framed, which might appreciably affect the pleadings previously filed. Again, parties are at liberty to produce the documentary evidence, at any rate, up to the date of issues. It may be necessary for a party if he gives his own evidence, to make statements about his own documents or those produced by his adversary. If he is to give evidence before all the documentary evidence is before the Court, he may find it necessary to re-enter the witness box and to depose in reference to documentary evidence which was not before the Court when he previously gave evidence. As a general rule, therefore, the plaintiff is within his rights if he retrains from giving his evidence, assuming it is otherwise possible for him to do so, before the settlement of issues and the production of all the documentary evidence. We do not think that the order of the learned Judge refusing to issue a commission for the examination of the plaintiffs on the ground already mentioned is just and reason able. The order has not made in clear that the one year which elapsed before the settlement of issues was wasted and that that length of time was not necessary for interlocutory proceedings which took place in the interval. In any case, there is no insinuation that the plaintiffs were responsible for the long time which elapsed before the issues were settled. According to the statement of the plaintiffs' counsel, witness 2 was to produce the original of the letter and to prove it. In view, however, of the readiness of the defendants' counsel to admit the copy of the letter, the learned Judge refused to issue a commission for his evidence. Witness 3 mentioned in the plaintiffs' application is a company. According to the application they expect their witness 3 to produce certain letters and to give evidence. Their counsel was not able to give any particulars of either the letters or the evidence which any officer of the company is likely to produce or give as the case may be. It appears that one of the plaintiffs (Mr. Covil) is included in the expression "Messrs. Whithers & Co." mentioned as No. 3 of the application. Mr. Covil is separately entered as No. 4. The learned Subordinate Judge could have directed the plaintiffs to name the individual, as distinguished from a company, whose evidence was desired to be taken. He might also have insisted on the letters which were to be produced being specified. He however proceeded on the ground that as Mr. Covil, who is one of the partners in the firm, is a plaintiff, the application for commission should have been made much earlier. In other words, one of the grounds on which he refused to issue a commission for the examination of No. 3 is the same as in the case of the plaintiff. He proceeds to give an additional reason, namely, that the plaintiffs' counsel was not in a position to furnish information regarding the nature of the evidence to be given by No. 3. The learned Judge concludes : "In the circumstances it is impossible to know its utility." It is very difficult to say that the learned Subordinate Judge took an unreasonable view as regards No 3 apart from what may be said regarding Mr. Covil.
4. We think that the order of the learned Subordinate Judge, in so far as he refused to issue a commission for the examination of the plaintiffs was not justified, in the circumstances of the case. The question is whether this Court can interfere in revision with the aforesaid order. The learned Subordinate Judge had jurisdiction to dispose of the application for examination of witnesses on commission. His order cannot be said to be without jurisdiction, nor can the learned Judge be considered to have failed to exercise a jurisdiction vested in him by law, or to have exercised it illegally or with material irregularity only because he took an erroneous view on a question arising in the case. An interlocutory order like the one in question cannot be said to amount to a "decision" of the case within the meaning of Section 115, Civil P.C. An additional ground on which this application for revision should be rejected is that there is yet time for the learned Subordinate Judge to rectify any errors which might have crept into his proceedings. We have no doubt he will give due weight to the consideration that it is better to allow a case to take a little longer time than to run the risk of a remand by the appellate Court. In this view we think the application for revision should be rejected.
5. The ground on which the application for transfer of the case is based is much the same. All that can be said is that the learned Subordinate Judge took an erroneous view in disposing of a certain application. There is nothing to suggest any bias in his mind for or against any party. Indeed the plaintiffs themselves have not made any such suggestion. Their object in moving this Court for a transfer seems to be to obtain expression of this Court's opinion on the question whether commission should be issued for the examination of the witnesses. In the view of the case we have taken, we dismiss both the applications with costs.