Andhra HC (Pre-Telangana)
Vinayak Trading Co. And Ors., Etc. vs Sham Sunder & Co. on 15 October, 1986
Equivalent citations: AIR1987AP236, AIR 1987 ANDHRA PRADESH 236
Author: K. Ramaswamy
Bench: K. Ramaswamy
ORDER
1. The petitioner is the defendant in O.S. Nos. 39 and 40 of 1981 on the file of the Court of District Judge, Adilabad. He sought for appointment of a Commissioner for recording his evidence on commission. An affidavit has been filed by the counsel for the petitioner stating that the petitioner has been apprehending danger to his life if he reaches Adilabad town for giving evidence. The lower court has dismissed the application on two grounds, viz., (i) since the petitioner has not filed the affidavit, the application made is not proper; and (ii) that the petitioner has at no point of time appeared before the Court. Sri Ananda Rao, learned counsel for the respondents seeks to support the order under revision, but I am not able to agree with the learned counsel. O. 26 R. 2 C.P.C. postulates :
"An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application supported by affidavit or otherwise, of any party to the suit or of the witness to be examined."
2. A reading of this rule would amplify that the discretion of the court is wide enough to order issue of commission on its own motion or on affidavit or otherwise. Therefore, an affidavit of a party or a witness is not mandatory nor a condition precedent. What is required of is the apprisement of the facts and circumstances under which the party is inviting the court to exercise its discretion. The exercise of discretion is not arbitrary. Further, O. 26 R. 4 (i) (a) postulates :
"4. (i) Any Court may in any suit issue a commission for the examination on or otherwise of -
(a) any person resident beyond the local limits of its jurisdiction."
3. Therefore, if the witness or the defendant is residing beyond the local jurisdiction of a Court, the Court may issue a commission to examine him on Commission. It is settled law that normally a party is to appear before the court to give evidence. Observance of the demeanour of witness is one important aspect in assessing the creditability of the evidence or varacity of the witness. If the witness is residing beyond the local limits of jurisdiction of the Court, discretion is vested in the Court to issue a Commission for his examination. In this case, the averment made is that the petitioner is apprehending danger to his life. Then, compelling him to appear before the Court would be at the risk of his life. The discretion vested has to be exercised in the light of the attendant circumstances. Though the affidavit of the party may have to be filed, mere omission in this regard is not a circumstance to dismiss the petition authomatically. When the counsel has filed the affidavit apprising the circumstances, obviously it must have been done on the instructions of the party. In these circumstances the affidavit of the counsel would be a sufficient compliance of O. 26 R. 2. The Court below has therefore committed irregularity in not accepting the affidavit of the counsel. Accordingly the order of the Court below is set aside and it is directed to appoint an advocate-Commissioner to examine the petition on commission at Rayachur. The petitioner shall bear the expenses of the counsel appearing for the respondent for his to and fro journey to that place and for his stay for purposes of his examination. He will also bear the expenses for the commission irrespective of the result in the suit. The lower court is directed to fix an appropriate amount in this regard. The revision petitions are accordingly allowed, but in the circumstances, without costs.
4. Revision allowed.