M.M.KUMAR, J. - (1.) THIS petition filed under Article 227 of the Constitution prays for quashing of (sic) order dated 2.8.2002, passed by Additional Civil Judge (Senior Division) Rajpura, rejecting the application filed by the plaintiff-petitioner for appointment of a Commission for examination of his earlier counsel Mr. Randeep Singh Surjewala, Advocate. It is appropriate to mention that the suit of the plaintiff-petitioner was dismissed on 26.9.1997 after the issues were framed and the case was fixed for evidence Thereafter, an application was filed for withdrawal of the suit with permission to approach this Court in view of the judgment of the Supreme Court in the case of Punjab State Electricity Board v. Ashwani Kumar, 1997(3) RCR(Civil) 147 : (1997)5 SCC 120. The aforementioned application was allowed and the suit was dismissed as withdrawn on 26.9.1997 (P-2). Subsequently, an application under Section 114 read with Order LVII Rule 1 and Section 151 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') for review of the order dated 26.9.1997, was filed by the petitioner through its counsel Shri Randeep Singh Surjewala. There was delay of 11 days in filing the review application, which led to the filing of another application under Section 5 of the Limitation Act, 1963 read with Section 151 of the Code, seeking condonation of delay. In the aforementioned application issues were framed but no evidence was led. Eventually another application for issuance of Commission to examine Shri Randeep Singh Surjewala as witness, in the application seeking condonation of delay, was filed. The learned Civil Judge after hearing learned counsel for the parties, passed the following order : "4. Present application for reviewing the order was filed by Randeep Singh Advocate and for condonation of delay on 10.12.1997. On 11.11.1999, issues were framed on the application as to whether there are sufficient grounds for filing review application or not. Since then, no witness has been examined by the applicant to prove his allegations. Plaintiff has availed number of opportunities to lead evidence and last opportunity was granted on 28.1.2002 for leading evidence. Now the application moved by the plaintiff for appointment of Local Commissioner for recording the statement of Randeep Singh Advocate, appears to have been made just to delay the proceedings. No documentary evidence has been placed on the file to prove that Randeep Singh is unable to attend the court. Moreover, Randeep Singh is counsel engaged by the plaintiffs and he is bound to appear this (sic)."
(2.) MR . Ashwani Talwar, learned counsel for the petitioner has argued that under Order XXVI Rule 4 and Order XVI Rule 19, witnesses can be examined by issuance of a Commission by the Court, especially when they are lawful resident to a place (within) jurisdiction of the trial Court. In support of his submission, learned counsel has placed reliance on two judgment of this Court in cases of Pritam Singh v. Smt. Vidya and another, 1976 PLR 877 and Mrs. Tara Sarup v. M/s Piara Singh Gurmail Singh and others, 1984 PLR 605. Mr. Parminder Singh, learned counsel for the respondents has submitted that the grounds for dismissal of application are clearly set out in para 4 (supra). He has not disputed the powers of the Court to issue Commission but has submitted that in the present case no Commission deserves to be issued because the petitioner is resorting to delaying tactics. There is categoric finding recorded by the trial Court that the application moved by the petitioner is only to delay the proceedings.
(3.) AFTER hearing learned counsel for the parties and pursuing the record, I am of the considered view that no case is made out for interference of this Court in exercise of jurisdiction under Article 227 of the Constitution. The application for reviewing order dated 26.9.1997 was filed on 10.11.1997 and issues were framed on 11.11.1999. No witness has been examined by the petitioner to prove his allegation. A large number of opportunities have been availed for that purpose. It is in these circumstances that the trial Court has refused to grant permission to examine the witness by issuance of Commission. There is no merit in this petition. 6. Accordingly, the parties are directed to appear before the trial Court on 27.2.2006. Petition dismissed.;