ORDER
Dr. M.K. Sharma, J.
1. This order shall dispose of the application filed by the plaintiff under Order 26 Rules 1, 2 & 4 read with Order 16 Rule 19 CPC praying for
allowing the plaintiff to examine the plaintiff and other five witnesses mentioned in the list of witnesses of the plaintiff, on commission at Calcutta instead of Delhi.
2. Suit No.885/1982 was instituted in this Court by the plaintiff seeking for a decree for possession and mesne profit, while Suit No.1342/84 was instituted by the plaintiff in this court for specific performance of an agreement of sale. By an order passed by this court on 29th March, 1995 in Suit No.1342/84 both the aforesaid suits were consolidated and ordered to be tried together. On 27th August, 1996, it was recorded by this court that the list of witnesses of the plaintiff was filed and accordingly Sh.M.L.Mehta, Joint Registrar was appointed as Local Commissioner for
recording evidence in this suit. Parties were directed to appear before the Local Commissioner for fixing the dates of trial before the Local Commissioner. On 2nd December, 1996, counsel for the plaintiff submitted before this court that the witnesses of the plaintiff are based at Calcutta and they are unable to come to Delhi and accordingly the matter was adjourned at the request of counsel for the plaintiff. On 10th April, 1997, a state-ment was made by the counsel appearing for the plaintiff that he would be moving an appropriate application for examination of the plaintiff and other witnesses who are residents of Calcutta, at Calcutta. In pursuance of the aforesaid statement the present application has been filed by the plaintiff seeking for examination of all the witnesses of the plaintiff at Calcutta, on commission.
3. The aforesaid prayer of the plaintiff is opposed by the defendants 2 and 3 contending, inter alia, that the aforesaid prayer should not be entertained as issuance of commission, at the request of the plaintiff, would mean heavy expenditure on the part of the defendants who are retired persons and they being retired persons cannot afford to bear all the expenses and examination of witnesses at Calcutta would be denial of justice to them as it would practically be an ex parte proceedings. It is also stated that defendants 2 and 3 have no means to undergo the expenses of sending a counsel to Calcutta. It was stated that if the court is persuaded to issue a commission for examination of the witnesses at Calcutta, all the expenses of the defendants 2 and 3 and their counsel of going to Calcutta as well as their boarding and lodging and the fee of the counsel may be directed to be borne by the plaintiff.
4. The circumstances under which a witness could be examined on commission, are set out in the Code of Civil Procedure. If the witness resides beyond a particular distance from the local jurisdiction of the court, such a witness could be examined on commission as is provided for under Order 16 and Order 26 CPC. The counsel for the plaintiff submitted before me that the plaintiff is an old person aged about 80 years and is not keeping good health and therefore, atleast in his case evidence should be recorded at Calcutta by appointing a Commission. He also submitted that so far other
witnesses of the plaintiff are concerned, they are also residents of Calcutta and, therefore, when a commission is issued for examination of the plaintiff, on commission, the other witnesses could also be examined on commission at Calcutta. He submitted that a party and a witness stand on the same footing for the purpose of giving evidence in a suit. He further submitted that the examination of the plaintiff to give evidence in support of his case would definitely be necessary in the interest of justice and the plaintiff should not be put at a dis-advantage vis-a-vis the defendants
only because the plaintiff had the option to choose the forum of the court. Counsel further stated that since the plaintiff herein was residing beyond the local jurisdiction of the court, he cannot be ordered to attend the court in person to give evidence and, therefore, commission should be issued for his examination as also the examination of other witnesses to be produced by the plaintiff.
5. In support of his contention, counsel for the plaintiff relied upon the decision of Dattaji Rao @ Raje Vs. Ganga Bai , Saboora Bivi Ammal Vs. Julaika Bivi Ammal , Kanji Karsondas and Others Vs. Nathubhai Khimji and also Lachhmi Devi Vs. Chandrakala Saraogi and Another . In Dattaji Rao’s case (supra), a Single Bench of the M.P.High Court held that ‘ it would be proper exercise of discretion by the trial court to issue a commission for examination even of the plaintiff himself for which the Court’s entitlement to do so is statutorily contemplated under Rule 4 of order 26 itself. It was further held that examination of the plaintiff to give evidence in support of his case would definitely be necessary in the interest of justice and thus if
under Order 16 Rule 19 when the plaintiff cannot be ordered to attend the Court in person being resident 500 kms. away and unable to bear expenses for air-journey, the Legislature has itself placed a duty on the court to ensure that commission prayed is not refused as the mandate is inexorable.
I have considered the ratio of the aforesaid judgment. The aforesaid judgment although has considered all the relevant provisions, but in my considered opinion, the said judgment failed to give emphasis to the fact that the plaintiff could still be ordered to attend the court even if he is resident of 500 kms. away from the local jurisdiction of the particular court provided the two places where the evidence is to be recorded and his place of residence are connected by air. Calcutta, where the plaintiff and his witnesses are residing and Delhi, the place of trial, are connected by
air and there is no dis-agreement on that score. Thus, the witnesses of the plaintiff cannot seek for, as a regular course, to be examined on commission. The new proviso added to the provisions of Rule 19 of Order 16 CPC empowers a court to refuse examination of a witness on commission if he is resident of a place which is connected by air with the place of trial. In the present case, Calcutta and Delhi are connected by air and thus, in my considered opinion, the ratio of the decision in Dattaji Rao’s case (supra) is not applicable to the facts and circumstances of the present case. So far the ratio of the decisions in Saboora Devi Ammal’s case (supra) and Kanji Karsondas’s case and Lachmi Devi (supra) is concerned, there cannot be any dispute with regard to the legal proposition laid down therein that the expenses of commission as envisaged in Order 26 Rule 15 means the expenses to be paid by a party is the expense of the Commission which does not include the expenses to be incurred by the other party. Since the court cannot direct for payment of expenses to the defendants if an order for examination of the witnesses of the plaintiff on commission is ordered, the
said factor is to be appreciated and given due weight while making an order for examination of the witnesses of the plaintiff on commission, particularly when the two places are connected by air.
6. The counsel appearing for the plaintiff brought to my notice a decision of this court in Surender Kumar Sethi Vs. Punjab and Sind Bank wherein it was held by this court that ‘where no allegation was made in a belated application under Order 26 Rule 4 CPC that petitioner was unable to pay air fare of the witness nor he agreed to bear expenses of Counsel of respondent to go to Madras, Trial Court rightly rejected the application to examine the witness on commission.
7. Defendants 2 and 3 have stated in their reply that they are retired persons and cannot bear the expenses of sending a lawyer to Calcutta and to bear his boarding and lodging as also the air-fare. Counsel for the plaintiff has categorically asser5ted even before me that the plaintiff is not required to bear the expenses of defendants 2 and 3 for making arrangements for cross-examining the witnesses to be produced by the plaintiff, on commission. The two places are also covered by air. The plaintiff has chosen the forum for filing the present suit in Delhi and has been taking
all steps to contest the suit in Delhi. All these factors are to be taken note of and given due weight.
8. Counsel appearing for the plaintiff, during the course of his arguments, also brought to my notice the fact that the plaintiff is an aged person and and is afflicted with some diseases. In support of the aforesaid contention, the learned counsel drew my attention to para 5 of the application. It is stated therein that Sh.P.L.Suri, plaintiff is about 88-89 years old and he is also infirm and is afflicted with old age diseases. My attention is also drawn to a certificate issued by a doctor on 7th January, 1997 to the effect that he had examined Sh.P.L.Suri aged 88 years and found him to be suffering from cardiac ischemia, hypertension and giddiness and completely bed-ridden. In the certificate it was stated that the plaintiff was advised to take bed rest till recovery. The aforesaid certificate is dated 7th January, 1997. Subsequently, another certificate was given by the same doctor on 19th October, 1997 to the effect that Sh.P.L.Suri aged about 88 years had been under his treatment for cardiac ischemia, hypertension and cataract of both eyes and extreme debility. It was also certified that he was virtually bed-ridden since the last two months and he was advised to
complete rest in bed which was absolutely necessary for his health. The certificate dated 7.1 1997 stated that the patient was to take bed rest till recovery, whereas the certificate dated 19th October, 1997 indicates that the plaintiff was bed-ridden only for two months prior to 19th October, 1997. There is apparent conflict and contradiction in the two certificates and therefore, those certificates are not worthy of reliance and credence. It is not stated by the counsel appearing for the plaintiff that the said plaintiff is not in a position to even travel by air.
8. Taking the entire facts and circumstances of the case and the aforesaid factors into consideration, I am of the considered opinion that the prayer of the plaintiff that all his witnesses including himself be examined on commission at Calcutta , cannot be entertained for the reasons stated hereinabove. The application stands rejected.
List before the Joint Registrar for fixing the dates of trial on.