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Judgment
P.K. Mohanti, J.—Both the civil revisions have been heard together and will be disposed of by this common judgment as they involve common questions of la wand facts.
Civil Revision No. 492 of 1977 arises out of Money Suit No. 9 of 1972 filed by the opposite party for recovery of a sum of Rs. 95,203 83 as damages against the Petitioner. Civil Revision No. 493 of 1977 arises out of Title Suit No. 25 of 1972 filed by the Petitioner against the opposite party claiming a declaration that the order dismissing him from service is null and void or in the alternative for recovery of a sum of Rs. 33,000/- as damages for wrongful dismissal. Both the suits were ordered to be heard analogously.
On 18-6-1975 the opposite party filed applications in both the suits for examination of four witnesses on his behalf on commission under the provisions of Order 26, Rule 4, Code of Civil Procedure. The four witnesses sought to be examined on commission are (1) S.R. Kedia, (2) Brij Ratan, (3) M.H. Dalmia and (4) Haldhar Sharma. The learned Subordinate Judge by his order dated 4-19-1975 rejected the prayer for examination of S.R. Kedia and Brij Ratan on commission but allowed the prayer for examination of the other two witnesses on commission at Delhi. Aggrieved by this order, the Petitioner filed Civil Revision Nos. 2 and 3 of 1976 in this Court. By order dated 24-3-1977 this Court allowed both the Civil Revisions and remanded the cases for reconsideration of the matter of examination of those witnesses on commission in accordance with law, with special reference to the conditions embodied in the first Proviso to Sub-rule (1) of Rule 4 of Order 26. Code of Civil Procedure. After remand, the opposite party filed a petition alleging that Shri Dalmia and Shri Sharma are material witnesses and their examination is necessary in the interests of justice. The petition was opposed by the Petitioner. The learned Subordinate Judge allowed the prayer for examination of Shri Dalmia and Shri Sharma on commission at Delhi. It is against this order the both the Civil Revisions have been preferred.
The learned Subordinate Judge came to the findings that evidence of both the witnesses is necessary in the interests of justice and that under the provisions of Order 16, Rule 19. CPC they could not be ordered to attend in person to give evidence as they reside outside the local limits of the Court''S ordinary original jurisdiction.
On 28-10-1978 the Petitioner filed an affidavit in this Court stating that the witness Haldhar Sharma who had left the service of the opposite party and had accepted a job under the Industrial Consulting Bureau at New Delhi has in the meantime been reappointed by the opposite party and he has joined the opposite party-Company at Rajgangpur and that in the changed circumstances, it was no longer necessary to examine the laid witness on commission at Delhi. In view of the facts stated in the affidavit the learned Counsel for the opposite party did not press for examination of the witness Haldhar Sharma on commission. Therefore, the only question that arises for consideration is whether the order for examination of Shri Dalmia on commission at Delhi is sustainable.
It is urged on behalf of the Petitioner that Shri Dalmia is not a material witness'' and that Shri Dalmia being in the position of a party the provisions of Order 16, Rule 19, CPC are not applicable to him. It is also urged that the learned Subordinate Judge went wrong in declining to order payment of costs to the Petitioner for attending the examination of witnesses on commission.
The relevant provisions of Order 26, Rule 4 amended by the CPC (Amendment) Act, 1976 are as follows:
Rule 4. Person for whose examination commission may issue.
(1) Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of-
(a) any person resident beyond the local limits of its jurisdiction:
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Provided that where, under Rule 19 of Order XVI, a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice:
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Order 16, Rule 19, CPC as amended in 1976 is in the following terms:
Rule 19. No witness to be ordered to attend in person unless resident within certain limits.
No one shall be ordered to attend in person to give evidence unless he resides (a) within the local limits of the Court''s ordinary original jurisdiction, or
(b) without such limits but at a place less than one hundred or (where there is railway or steamer communication or other established public conveyance for five - sixths of the distance between the place where he resides and the place where the Court is situate) less than five hundred kilometers distance from the Court house.
Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person.
No doubt, the provision of Order 16, Rule 19(a) precludes the Court from compelling the personal attendance of a witness residing beyond the local limits of its ordinary original jurisdiction, but merely on that ground a party cannot claim a right to examine his witness on commission. Under. Order 26, Rule 4, CPC it is discretionary with the Court to issue a commission for examination of witnesses. Under the first Proviso to Rule 4 of Order 26 the Court is required to consider whether the evidence of the witness is necessary in the interests of justice.
The important question for consideration is whether the evidence at Shri Dalmia is necessary in the interest of justice. It was stated in the petition dated 19-9-1977 filed by the opposite party before the Court below that Shri Dalmia held enquiry into the charges framed against the Petitioner and that during the enquiry the Petitioner had admitted his guilt before Shri Dalmia.
It also appears from paragraph 4 of the order of dismissal dated 24th April, 1972 that (he charges against the Petitioner were enquired Into by the Executive Director of the opposite party and during the enquiry the Petitioner had admitted his guilt. Admittedly, Shri Dalmia is the Executive Director of the opposite party;, It was also pleaded by the opposite party in paragraph 9(iii) of its written statement filed in Title Suit No. 25 of 1972 that during the enquiry the Petitioner had admitted the charges. The admission of guilt made by the Petitioner is within the personal knowledge of Shri Dalmia. Unless Shri Dalmia is examined, the admission cannot be proved. Thus the evidence of Shri Dalmia is necessary in the interest of justice.
Order 16, Rule 19, CPC provides that no one shall be ordered to attend in person to give evidence unless he resides within the local limits of the Court''s ordinary original jurisdiction. The trial Court observed in its order No. 59 dated 4-12-1975 passed in Money Suit No. 9 of 1972 that Shri Dalmia is residing permanently at Delhi and is working as Director of a number of Industrial Companies having headquarters at Delhi for which it is not possible for him to attend in person to give evidence at Sundargarh. It also appears from the remand order passed in Civil Revision No. 2 of 1976 that it was admitted before this Court that Shri Dalrnia is residing at. Delhi and principally carrying on business there. Thus it is clear that Shri Dalmia resides at Delhi which is outside the jurisdiction of the Court and is situated at a distance of more than one hundred kilometer from the Court-house. There is no available transport by air between Delhi and the seat of the Court. The witness cannot, therefore, be compelled to attend in person to give evidence.
Order 16, Rule 19, CPC provides an exemption from personal attendance of a witness and not of a party. The heading of the rule itself indicates that it is applicable to witnesses only. So the provisions of Order 16, Rule 19 are not applicable when a party desires to examine himself on commission. Mr. Misra, the learned Counsel appearing for the Petitioner strenuously contended that Mr. Dalmia being in the position of a party, the provisions of Order 16, Rule 19. CPC are not applicable to him. The argument is that Shri Dalmia is the Executive Director and he is in sale supervisory charge of the Company and as such he is in the position of a party to the suit. It appear, however, that Money Suit No. 9 of 1972 has been brought by the Orissa Cement Limited which is a public limited Company and the plaint in that suit has been verified by Mr. Brij Ratan, the Manager of the Company. Similarly, the Petitioner has brought Title Suit No. 25 of 1972 against the opposite party through its General Manager and the written statement has been verified by its Manager Shri Brij Ratan. Me. Dalmia is no doubt, an Executive Director of the opposite party but he cannot be described as a party to the suit. In my opinion, he is in the position of a witness and the provisions of Order 16, Rule 19, CPC are clearly applicable to him. The contention raised on behalf of the Petitioner is, therefore, without any merit.
Lastly it is contended that the opposite party should pay the expenses of the Petitioner and his Advocate for attending the examination of Shri Dalmia at Delhi.
Order 26, Rule 15, CPC provides as follows:
Rule 15. Expenses of commission to be paid into Court.
Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.
The words "expenses of commission" occurring in this Rule do not include the expenses needed for the opposite party and his counsel to attend the place where the commission is to be -executed. On a plain reading of the provisions of Rule 15, confirmed view is that the expression "expenses of commission" means reasonable expenses of the Commissioner including his fees and travelling allowance. This view is supported by the decisions reported in Lachhmi Devi Vs. Chandrakala Saraogi and Others, . The Tata Iron and Steel Co. Ltd., with its office at Jamshedpur, Calcutta Vs. S. Kader Ibrahim Rowther, . Asanand Nanak Chand Aggarwal v. C.A. Ayyathurai AIR 1956 Trav. Cacho 260, Kanji Karsondas and Ors. v. Nathubhai Khimji AIR 1953 foro. 390 and The Union of India v. Messrs. Natabarl Jayshankar 22 (1956) C.L.T. 72.
In the Bombay case Gagendragadkar, J. (as he then was) observed as follows:.
... Therefore, in our opinion, the expenses of the commission must be distinguished from the costs resulting from the issue of the commission and in the context these expenses must denote only the fees to be paid to the Commissioner and other expenses directly incidental to the issue and the execution of the commission.
In the Orissa case a Division Bench laid down as follows:
... The expression ''expenses of the commission'' used In Rule 15 would indicate that all reasonable expenses of the commissioner, including his remuneration and incidental expenses incurred by him are to be provided for by the Court and to be paid into Court by the party at whose instance or for whose benefit the commission is to be issued. I am unable to find any provision which would warrant the view that the Plaintiff''s expenses also should be provided for by the Court....
Mr. Misra appearing for the Petitioner, however, relied on the following observations made in the Orissa case:
...I should not be understood however as laying down an universal rule that in no case should the Court .provide'' for the expenses of the opposite parties in matters like this. It may be necessary to provide for the payment of expenses of the opposite party in cases where a commission for local investigation is issued as was done in AIR 1937 Cal 907,
In that case a large number of witnesses were to be examined on commission at Bezwada. All the witnesses were under the direct control of the party asking for issue of commission. Their Lordships directed that all the witnesses should be produced on the date fixed and their examination should proceed from day to day without a break, so that the Plaintiff may not be put to unnecessary trouble and expense. Their Lordships further directed that if the Petitioner failed to produce any of his witnesses, he must take the consequence of losing the benefit of the examination of that witness on commission at Bezwada and be must either be produced at Cuttack or the Plaintiff should be paid all his reasonable expenses for his journey to and from Bezwada in that connection. In the facts and circumstances of that case their Lordships put the party to term of paying the costs of its opponent in case he failed to produce all his witnesses on the date liked by the Commissioner. This does not necessarily imply that while issuing a commission for examination of witnesses for a party, the Court should direct payment of costs of the opposite party.
Relying on the principles laid down in the aforesaid decisions, I would agree with the Court below that the opposite party is not required, to pay the expenses of the Petitioner for attending the examination of the witness on commission.
For the foregoing reasons, the order of the Court below directing examination of Shri M.H. Dalmia on commission at Delhi is maintained.
As mentioned earlier, the learned Counsel for the opposite party did not press for examination of the witness Haldhar Sharma on commission. This witness should, therefore, attend io person to give evidence in Court.
Subject to the above modification in the impugned order, both the civil revisions are dismissed, but without any order as to costs.
Revision dismissed.