- (1.) A. K. Banerji, J. This revision is directed against the order, dated 17-2-1993 passed by the VIIth Additional District Judge, Gorakhpur by which the said Court dropped the proceedings for Commission for examining the witness on interrogatories and directed the defendant to produce his witnesses in and directed the defendant to produce his witnesses in Court.
(2.) BRIEF facts are that the landlord-Opp. party filed a S. C. C. Suit No. 7 of 1983 against the defendant- applicant for recovery of arrears of rent and ejectment. In the written statement the defendant denied the service of notice for terminating the tenancy on the ground that the said notice could not be served on the defendant by the refusal as she had gone to Bagha, district West Champaran, Bihar where she was under the treatment of Dr. M. Rizwan between the period 1-3-1983 to 23-3-1983. As evidence in support her case the defendant filed three papers which were medical certi ficates given by Dr. M. Rizwan. At the evidence stage an application (paper No. 209/c) was filed under Order XXVI, Rule 4, C. P. C. for examining" Dr. M. Rizwan at Begha, West Champaran on commission by serving interro gatories This application was opposed. However, the court below vide order dated 23-8-1990 allowed the said application but very surprisingly misconstrued the application and passed the order for examination of the defendant No. 1 on Commission instead of defendant's witness, Dr. Rizwan. It appears that despites this glaring mistake in the order none of the parties sought to get the same corrected. On the contrary the defendant-applicant deposited the necessary expenses, as ordered by the Court. Though the District Judge, Champaran fixed a date for recording the evidence, the Com mission could not be executed for one reason or the other for more than two years, and ultimately on 13-1-1993, the trial Court passed an order that a reminder be sent to the District Judge, West Champaran for completing the Commission and forwarding the report to the Court by 17-2-1993 otherwise the Court will proceed with the matter. On 17-2-1993 which was the date fixed, the defendant did not appear and the trial court passed the impugn ed order dropping the proceedings for Commission and directed the defendant to produce his witnesses in the Court on 6-3-1993. The defendant did not make any effort to get this ex parte order recalled but filed the present revision before this Court by challenging the impugned ex parte order dated 17-2-1993. I have heard the learned counsel for the parties and have perused the record of this revision and the same is being decided finally with the consent of the learned counsels at the admission stage. The learned counsel for the defendant-applicant has strongly contend ed that once the Court had passed an order for examination of a witness on Commission it had no jurisdiction to recall the said order. Besides, the defendant-applicant had deposited the cost for Commission and delay in the execution of the Commission was not on account of the defendant-applicant. The court, therefore, exceeded its jurisdiction in dropping the proceedings for examination of the witness on Commission and thereby prejudicing the case of the defendant. I am, however, unable to agree. As already noticed above, the order dated 23-8-1990 by which the Court had allowed the defendant's application (paper No. 209/c) suffered from an apparent error, inasmuch as the defendant-applicant had sought the examination of Dr. M. Rizwan on Commission on the ground that the said witness was living beyond the juris diction of the Court and was unable to come to Gorakhpur to give evidence The court, however, misconstrued the said fact and proceeded as if the defen dant-applicant wanted to examine herself as DW 1 on commission as she was lying ill at Bagha, district West Champaran, Bihar. The order of allowing the proceeding for commission was, therefore, based upon an absolutely wrong premise and therefore, all the subsequent proceedings for examination on com mission would be rendered nugatory. Under Order XXVI, Rule 4, G. P. C. the court could issue a commission for examination of a person on interrogatories or otherwise provided the court for reasons to be recorded thought it necessary so to do. Similarly, Rule 19 of Order XVI lays down that where a person cannot be ordered to attend a court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interest of justice. There is a further proviso which lays down that a commission for examination of such person on interrogatories shall not be issued unless the Court for reasons to be recorded thinks it necessary so to do. From the aforesaid provisions, it is amply clear that the court will only exercise its discretion to examine a person on commission or by interrogatories provided for reasons recorded if considers it necessary in the facts of the said case to do so. As noticed in the present case at hand that the trial court had on a complete misunderstanding of the facts of the case passed the order dated 23-8- 1990 for examining the defendant No. 1 on commission instead of the Doctor for whose examination the prayer was made in the application (Paper No. 209/c ). The reason recorded was therefore not sustainable and the proceeding consequent upon this order for issuing commission was, therefore, not legally sustainable.
(3.) THE learned counsel for the defendant-applicant has however, con tended that the letter issued from the office of the Court at Gorakhpur to the District Judge, Champaran mentioned the examination of the witness Dr. M. Rizwan and therefore, no prejudice is caused to the plaintiff. I cannot agree. THE letter sent to the District Judge, West Champaran is only a ministerial act and could not take the form of the order of the Court. THE commission was only issued on the order dated 23-8-1990 which speaks about the examina tion of the defendant No. 1 and not of Dr. M. Rizwan. THE letter, therefore, cannot modify supersede or correct the order dated 23-8-1990. So far as the submission of the learned counsel that the court having once passed an order for examination of a person on commission is not empowered to recall the said order, the same to my mind is fallacious. If the Court has the power conferred by the statute to issue an order for exa mination on commission it can very well vary or rescind the said order on the principle laid down under Section 21 of the General Clauses Act. 1 am supported in my view by a decision of the Delhi High Court in case of Narain Das v. Koran Chandra reported in AIR 1968 Delhi 226 wherein an earlier order for examination of some witnesses on commission was rescinded and similar argument like in the present case, was repelled. It was held that the earlier order was a procedural one and no Quality can be said to have attached to it. Besides if circumstances subsequent to the passing of the said order require that a variation or cancellation is necessary. There can be no legal objection bar to the variation or cancellation of the said order by a fresh order. In the said case the court had relied upon the observations made by a Division Bench of the Rangoon High Court in the case of Chettyar v. Maung-Ba Chit, reported in AIR 1930 Rangoon 315 which reads as follows: "i do not think that it can be held that a Judge has not the power to alter an order of his predecessor with regard to the issue of a commission. Such an order is not a final one and it relates more to the routine of the case than to the merits of the case. There can be no possible doubt that a Judge can alter an order passed by his predecessor with regard to the framing of issues, an order for examination of witnesses, adjournments and so forth, and, there fore, I see no reason why he should not alter an order passed by his predecessor with regard to the issue or non-issue of a commission. ";