JAYASHANKAR MILLS BARSI LTD Vs. HAJI ZAKARIA HAJI EBRAHIM

JUDGEMENT

(1.) This Civil Revision Petition raises the question as to whether a person, who is in the position of a defendant in the suit, can demand, as of right, examining himself as a witness on commission ; and, if not, whether in the circumstances of the case, it is just and proper that a commission should issue.

(2.) The petitioner-defendant is a limited company carrying on its business at Barsi, in Sholapur district. The plaintiff is a registered partnership firm with its headquarters at Kakinada. The action is for damages flowing from the breach of contract and was laid in the Court of the Subordinate Judge, Kakindada. This contract is said to have been entered into, at the first instance, on a telephone-call with the working partner of the managing agents of the defendant's company who seeks now to be examined on commission as a witness in the case. Originally, the suit was posted for evidence on I4th September, 1960, but the petitioner, well in advance of that date, on 31st August, 1960 itself, made an application accompanied by an affidavit requesting the Court that since it was not convenient for the managing agent to be present on that date in Court as a witness, the trial may be adjourned to any date between 19th September, 1960 and 24th September, 1960 or to some other convenient date. The Court readily granted the request and advanced the date to 2Oth September, 1960. The witness does not appear to have been sincere in his request, for, shortly thereafter, another application was made on 12th September, 1960 and this time it was for issue of commission. In the affidavit filed, it was averred that the witness cannot afford to be away from Barsi for 5 or 6 days at a stretch without causing dislocation to the company's work and that since he is living at a distance of more than 200 miles from Kakinada, he is entitled to be examined on commission at Barsi. This petition was filed under Order 16, rule 19; Order 26, rule 4 and section 151, Civil Procedure Code. The plaintiff opposed it on the grounds, that the witness occupies the position of a defendant and cannot insist as of right on the issue of a commission for his own examination as a witness ; that there was no compelling necessity for the issue of such commission and that the likelihood of dislocation of business is not true in that the witness himself had once offered to appear before the Court.

(3.) The learned Subordinate Judge rejected the petition on the ground that the witness who is the managing partner of the defendant-company must be deemed to be the party in the suit, that he is an important witness and having regard to the facts and circumstances of the case and the nature of his evidence, the Court must have an opportunity of observing his demeanour. He refused to countenance the plea that by his absence from Barsi the work of the defendant company would be dislocated. Mr. K.B.Krishnamurthy, the learned counsel for the petitioner, advanced a two-fold argument : firstly, that the witness is not in the position of a defendant and hence he has a statutory right to be examined on commission, and secondly, in any view, the commission cannot be refused merely because he occupies the position of a defendant. It is indisputable that a civilised system of law is as much concerned with the means employed for securing justice as it is with the ends of justice itself. A litigant consequently must, as far as possible, always enjoy a right to have the witness brought before the Court for purposes of examination in accordance with the normal procedure.