- (1.)Shri R.A. Roman, Counsel for the petitioner. Counsel is heard and the matter is being disposed of at the admission stage. This is defendants' petition and is directed against an order passed on 27-6-1987 by the trial court at Gwalior. That Court has allowed an application of the plaintiff to modify its earlier order. The plaintiff had prayed that although the Court had accepted her prayer for her evidence being taken on commission at Indore, where she resided, the commission issued could not be executed over a period of six years by the District Judge, Indore. Therefore, an Advocate practising at Gwalior be appointed Commissioner to take her evidence at Indore. The prayer was allowed on the condition that Commissioner's fee of Rs. 650/- had to be paid by the plaintiff, herein non-petitioner 1. It is against this order that the instant petition is filed.
(2.)
(3.)Shri Roman, who appears for the defendants-petitioners, has seriously impugned the order on the ground that there was no justification in law for plaintiff to be examined on commission. Counsel has cited case-law to which I would soon advert but I would immediately say that the discretion to examine the plaintiff on commission having been exercised six years ago and against that no challenge having been made for such a long distance of time it is too late now to contest merely a modification of that order. What further needs to be stressed to buttress the conclusion is that the discretion once exercised six years ago by the trial court was re-exercised for the second time by the same Court. Under these circumstances, in this revision, this court would not, unless exceptional grounds are shown, interfere in the matter. The several provisions of law bearing on the question, to be discussed hereinafter, make it very clear that it is the trial Court which has to exercise its discretion in the matter and only when the discretion is exercised unjudicially or extra-jurisdictionally that a grievance can be made.