{"id":182195,"date":"1998-10-23T00:00:00","date_gmt":"1998-10-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/panna-lal-suri-vs-surinder-kumar-khullar-on-23-october-1998"},"modified":"2015-08-30T05:16:32","modified_gmt":"2015-08-29T23:46:32","slug":"panna-lal-suri-vs-surinder-kumar-khullar-on-23-october-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/panna-lal-suri-vs-surinder-kumar-khullar-on-23-october-1998","title":{"rendered":"Panna Lal Suri vs Surinder Kumar Khullar on 23 October, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Panna Lal Suri vs Surinder Kumar Khullar on 23 October, 1998<\/div>\n
Equivalent citations: 1999 IAD Delhi 25, 76 (1998) DLT 536, 1999 (48) DRJ 299, (1999) 121 PLR 20<\/div>\n
Author: . M Sharma<\/div>\n
Bench: . M.K.Sharma<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Dr. M.K. Sharma, J.<\/p>\n
 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
\nallowing  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.\n<\/p>\n
 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
\nrecording 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.\n<\/p>\n
 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.\n<\/p>\n
 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
\nwitnesses  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
\nonly 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.\n<\/p>\n
 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
\nunder  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.\n<\/p>\n
  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
\nair 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
\nsaid 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.\n<\/p>\n
 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.\n<\/p>\n
 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
\nall  steps to contest the suit in Delhi. All these factors are to be  taken note of and given due weight.\n<\/p>\n
 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
\ncomplete  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.\n<\/p>\n
 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.\n<\/p>\n
      List before the Joint Registrar for fixing the dates of trial on.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Panna Lal Suri vs Surinder Kumar Khullar on 23 October, 1998 Equivalent citations: 1999 IAD Delhi 25, 76 (1998) DLT 536, 1999 (48) DRJ 299, (1999) 121 PLR 20 Author: . M Sharma Bench: . M.K.Sharma ORDER Dr. M.K. Sharma, J. 1. This order shall dispose of the application filed by the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-182195","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nPanna Lal Suri vs Surinder Kumar Khullar on 23 October, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/panna-lal-suri-vs-surinder-kumar-khullar-on-23-october-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Panna Lal Suri vs Surinder Kumar Khullar on 23 October, 1998 - 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