RAFIQ, J. - (1.) THIS writ petition has been filed against the order dated 2. 11. 2007 whereby the application of the defendant-respondent for examination through commission filed under Order 26 Rule 9 CPC has been allowed.
(2.) LEARNED counsel for the petitioner has argued that application has been allowed only on the basis of the fact that defendant is Chairperson of the Dang Regional Development Board and that he holds the status equivalent to that of a Minister of the State. LEARNED counsel for the petitioner submitted that such an exemption is available only to those dignitaries who are enumerated in Section 133 of the CPC and defendant does not fall in any of categories given thereunder. It is argued that the discretion has been wrongly exercised by the learned trial Court by permitting evidence of the defendant to be recorded on Commission. The impugned-order is therefore liable to be set- aside. Learned counsel for the respondent has opposed the writ petition and has argued that apart from Section 133 CPC, Rule 4a of Order 26 CPC inserted by the Amendment Act of 1999 w. e. f. 1. 7. 2002 inter-alia empowers the Court to grant permission for examination of witness in the interest of justice or for expeditious disposal of the case or for any other reason, on commission in any suit. It is argued that the Court was fully justified in permitting the examination of defendant on commission as in any case it would be in the interest of justice as also would ensure expeditious disposal of the case. Having heard learned counsel for the parties and perused the material on record, I find that the learned trial Court has accepted the application filed by the defendant-respondent on consideration of fact that he is Chairman of Dang Regional Development Board and thus holds the status equivalent to that of a State Minister and not on any of the considerations that are relevant for invocation of Rules 1, 4 and 9 of Order 26 CPC. Even otherwise, no case is made out to show as to how it would be in the interest of justice if the defendant is examined on commission and how it would be opposed to interest of justice if he is examined before the Court itself and how the former mode and not the latter one would ensure expeditious disposal of the case. It would be rather more appropriate if the defendant appears before the Court for examination in person. Law as contained in Order 26 Rule 1 CPC for examination of a witness through the Court Commissioner is clear that such examination in any suit may be directed by the Court if either he is exempt under the Code or if he is unable to attend the Court due to sickness or infirmity. Normal rule thus is that a witness has to personally appear before the Court for recording of his evidence and above instances are exception to the rule. It is trite law that an exception to the rule is required to be construed strictly. Case of the respondent, in my view, does not fall in any of the excepted categories. I am therefore inclined to hold that the learned trial Court allowed the application moved by the defendant-respondent by mis- applying the law on the subject. The impugned-order is therefore not sustainable in law.
(3.) IN the result, the writ petition is allowed. The impugned- order dated 2. 11. 2007 passed by Additional Civil Judge (Junior Division), Karauli is set-aside. The defendant may now appear for his evidence before the trial Court on the next date fixed or at any other date that may be fixed by the trial Court in its discretion. .;