S.N. Singh, J. - (1.) This revision petition is directed against an order of the Civil Judge, Deoria, directing the Defendant to deposit Rs. 1000/ - as costs of the Plaintiff which might be spent by the Plaintiff at Bombay for preparing his case there. It appears that Defendant Bhagwati Prasad Khetan applied for the issuance of commission for recording the evidence of his witnesses as well as of his. In that application it was prayed that five witnesses be examined at Bombay. An objection was taken by the Plaintiffs and it was alleged that the application was not a bonafide one. The lower court came to the conclusion that the application was not a bonafide one and was not inclined to accept this prayer but it appears that it showed indulgence to the Defendant and after some hesitation allowed the application subject to the payment of Rs. 1000/ - as costs as stated above.
(2.) The Defendant has come up in revision against this order. Learned Counsel for the Petitioner has submitted that the Civil judge had no jurisdiction to pass this type of order awarding costs to the Plaintiff under Order 26, Rule 15 Code of Civil Procedure. It was submitted that under Order 26 Rule 15 Code of Civil Procedure the Civil Judge could have only directed the amount of expenses of the commission to be deposited within a time to be fixed by that court. He had no jurisdiction to direct the Defendant to deposit the expenses of the Plaintiffs for the preparation of their case. Learned Counsel supported this submission of his by relying on the following cases: (1) The Tata Iron and Steel Co. Ltd. v/s. S. Kader Ibrahim Rowther : AIR 1955 Mad 654. (2) Maremanda Seshamma v/s. Jooluri Narasimha Rao and Ors. : AIR 1963 ap 167. (3) Mst. Anoora v/s. Babu Sagarmal and Anr. : AIR 1963 Pat 213 and (4) Kanji Karsondas and Ors. v/s. Nathubhai Khimji : AIR 1953 Bom 390. As against this submission the learned Counsel for the opposite parties submitted that the court had ample jurisdiction to pass the order sought to be revised Under Sec. 151 Code of Civil Procedure. In support of his submission the learned Counsel for the opposite parties relied on the following cases: (1) Jiwibai v/s. Laxmichand Abasbhai, AIR 1955 Raj 32, (2) Babu Gulab Rai Ghutghutia v/s. Mahendra Nath Sreemani, AIR 1935 Pat 220 and (3) Kumar Sarat Kumar Ray v/s. Ram Chandra Chatterjee : AIR 1922 Cal. 42.
(3.) Before this Court learned Counsel for the opposite parties suggested to the learned Counsel for the Petitioner that he should agree to the examination of the Defendant Sri Khetan in court and the evidence of other witnesses might be recorded by serving interrogatories and cross -interrogatories at Bombay but the Applicant was not agreeable to this suggestion. Learned Counsel for the Petitioner submitted that the Defendant should also be examined at Bombay and that no costs should be ordered to be paid by the Defendant for the Plaintiff.;