BHAGWATI PRASAD KHETAN Vs. SRI LAKSHIMI NATH JI MAHARAJ AND ORS.

JUDGEMENT

(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:

(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.