HABIBULLAH MAJUMDER Vs. NIKHIL PODDAR AND OTHERS
HIGH COURT OF GAUHATI
Nikhil Poddar And Others
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R.S. Bindra, J.C. -
(1.) In a suit filed against Habibullah, a resident of Pakistan, by Nikhil Poddar and others for recovery of damages on account of malicious prosecution, he (the defendant) moved an application in the trial Court praying that he and his witnesses, who are also residents of Pakistan, should be permitted to be examined on commission. That application was rejected by the trial Court on 10 -4 -1967 on the basis that there was no reciprocal arrangement between India and Pakistan in regard to examination of witnesses on commission. Aggrieved by that order, Habibullah has come up in revision to this Court.
(2.) It was held in the case of Mohammed Azizul Rahman Khan v/s. Mohammed Ibrahim, : AIR 1958 All 19, that the issue of a commission for examination of a witness is not the right of a party but is dependent upon the discretion of the Court. The High Court observed further that if there are no reciprocal arrangements between India and Pakistan respecting the examination of witnesses on commission, the Court is well within its rights in rejecting an application for issue of commission. The High Court agreed with the trial Court's finding that there was no reciprocal arrangement between the two countries for examination of witnesses on commission.
Likewise, the Punjab High Court held in the case of National Fire and General Insurance Co. Ltd. v/s. Mool Singh,, AIR 1951 P&H 227, that there was no reciprocal arrangement between India and Pakistan and as such a letter of request cannot be addressed to a Court in Pakistan in terms of Order XXVI, Rule 5, Civil Procedure Code for the examination of a witness residing there. It was held further that an officer of a Court in India, in the absence of any reciprocal arrangement regarding examination of a witness on commission, is not competent to record evidence on commission in Pakistan.
In this case Harnam Singh, J., approvingly referred to a previous judgment of the Punjab High Court in the Civil Revn. No. 58 of 1950 (Punj) decided by Khosla, J, who had held that a party cannot as of right demand the issue of a commission to a place outside India unless reciprocal arrangements exist and have been recognized by the High Court. Khosla, J., also happened to observe that it was conceded before him that there was no such arrangement existing between India and Pakistan. Harnam Singh, J., held further in the case of National Fire and General Insurance Co. Ltd.,, AIR 1951 P&H 227 that the order of the trial Court refusing the prayer for examining the witnesses on commission in Pakistan does not fall within the ambit of Clauses (a), (b) or (c) of Sec. 115 of the Civil Procedure Code. Hence, he happened to dismiss the revision petition on the double finding that no revision was competent and that since there was no reciprocal arrangement between the two countries, the commission could not be issued. With respect I agree with these observations of the learned Judge and they are also in accord, I may add, with what was held in Mohammed Khan's case (supra).
(3.) As against the two authorities of Allahabad and Punjab High Courts cited on behalf of the respondents, Shri M. R. Choudhury, appearing for the defendant -petitioner has placed reliance on the decision in Hukumal v/s. Manghoomal,, AIR 1953 Ajmer 27, where it was held that if "the witness lives at a considerable distance in Pakistan and cannot be compelled to attend the Court" a commission can be issued for his examination. A perusal of the report shows that no objection was raised before the Judicial Commissioner that there being no reciprocal arrangement between India and Pakistan for examination of witnesses on commission the prayer made for the purpose was not tenable. Therefore, the decision in Hukumal's case is not much of importance because the point that has arisen for determination in the instant revision petition was not debated in that case.
Shri M. R. Choudhury, however, urges that this Court should assume that by the time the case of Hnkumal was decided, reciprocal arrangements between India and Pakistan for examination of witnesses on commission had been arrived at. I regret my inability to accept that contention. Hukumal's case was decided on 27 -1 -1953, whereas the Allahabad High Court decided the case of Mohammad Khan on 22 -3 -1957. If any such arrangement had been reached between the two countries by 27 -1 -1953, the Allahabad High Court could not have failed to take notice of it in March, 1957.;
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