ORDER
P.S. Narayana, J.
1. Heard Sri E. V. Bhagiratha Rao, learned Counsel representing the revision petitioner and Ms. Prasanna, learned Amicus Curiae, appointed by this Court to assist the Court.
2. Revision petitioner-defendant in O.S. No. 114 of, 1999 on the file of Junior Civil Judge, Srungavarapukota filed LA. No. 38 of 2003 in O.S. No. 114 of 1999 under Order 26, Rules 1 and 4 of the Code of Civil Procedure, hereinafter referred as ‘the Code’, to direct the Court at Agra, State of Uttara, Pradesh to appoint a Commissioner to examine the hand-writing expert Sri Ashok Kashyap. The said application was opposed by the respondent-plaintiff and the learned Junior Civil Judge, Srungavarapukota by the order dated 25-6-2003 allowed the application in part, appointing a Commissioner of the self-same Court on the ground that the said Court cannot direct the other Court at Agra to appoint a Commissioner. Assailing the same, the present revision petition is preferred.
3. Sri E.V. Bhagiratha Rao, learned Counsel representing the revision petitioner had explained the practical difficulty involved in the matter. The learned Counsel submitted that the suit is based on a promissory note and the defendant contended that the promissory note is a forged document. It is also represented that there are two conflicting opinions by two different experts. Learned counsel further submitted that in such circumstances, in view of the fact that huge expenditure may have to be incurred if the Commissioner is to be taken from Srungavarapukota to Agra, in the interest of justice, the learned Junior Civil Judge, Srungavarapukota could have exercised the discretion of at least making a letter of request to the concerned Court at Agra to appoint a Commissioner of the said place for the purpose of recording the evidence, instead of partly allowing the application for appointment of Commissioner, which virtually would amount to not to appoint any Commissioner at all in view of the huge expenditure involved in the matter.
4. Ms. Prasanna, learned amicus curiae, appointed by this Court to assist the Court, in this regard, had submitted that this practical difficulty can as well be taken into consideration if this is a matter of giving a direction to the Court within the limits of State of Andhra Pradesh. But, in view of the fact that a direction is sought for to a Court at Agra, learned Junior Civil Judge, Srungavarapukota had arrived at the correct conclusion and had appointed a Commissioner of the said Court only. Learned Amicus Curiae had also explained the order made by this Court in CRP No. 2889 of 2001 dated 26-9-2001, wherein such direction was issued to a Court at Hyderabad within the limits of State of Andhra Pradesh. Learned Amicus Curiae had also drawn attention of this Court to Order 16, Rule 19, Order 26, Rule 4 and also Rule 10, 10A of the Code and ultimately submitted that in the peculiar facts of the case, at best, the learned Junior Civil Judge, Srungavarapukota might have addressed a letter of request to the concerned Court at Agra to appoint a Commissioner for examining the expert.
5. In the present matter, the direction prayed for by the revision petitioner is to direct the Court at Agra to appoint a Commissioner to examine the hand-writing expert Sri Ashok Kashyap. It is not in controversy that the Court at Agra is beyond the limits of the State of Andhra Pradesh. It is needless to say that in such a case, the direction sought in the application cannot be granted except making a letter of request. The learned Judge, instead of dismissing the application in toto, had exercised the discretion and appointed a Commissioner. The said order is assailed in the present revision petition.
6. Order 16, Rule 19 of the Code deals with no witness to be ordered to attend in person unless resident within certain limits and the said provision reads as follows:
“19. No witness to be ordered to attend in person unless resident within certain limits :–No one shall be ordered to attend in person to give evidence unless he resides–
(a) within the local limits of the Court’s ordinary original jurisdiction, or
(b) without such limits but at a place less than one hundred or (where there is railway or steamer communication or other established public conveyance for five sixths of the distance between the place where he resides and the place where the Court is situate) less than five hundred kilometers distance from the Court house:
Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person.
7. Order 26, Rule 4(1)(a) of the Code specifies that any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident beyond the local limits of its jurisdiction. It is clear from the language of the provision that the power to be exercised by the Court is discretionary.
8. It may be that there may be certain practical difficulties. But when the learned Judge had exercised his discretion in a particular way, I do not see any legal infirmity warranting interference with the impugned order, so as to give a different direction. No doubt reliance was placed on an order of this Court in CRP No. 2889 of 2001 dated 26-9-2001. It was a case where a warrant of commission was issued to the concerned Court at Hyderabad with a request to record the evidence of the Assistant Government Examiner for questioned Documents, Hyderabad in accordance with law. The said case is distinguishable on facts. In the present case, the direction prayed for to a Court at Agra in State of Uttar Pradesh. Hence, in view of the findings recorded above, I do not see any illegality committed by the learned Judge in appointing a Commissioner from Srungavarapukota instead of giving a direction to the concerned Court at Agra. This revision petition is devoid of merits.
9. Accordingly, this revision petition shall stand dismissed. No costs.
10. Before parting with the case, this Court records it’s appreciation for the assistance rendered by Ms. Prasanna, amicus curiae.