Baljinder Singh Hira vs Karnail Singh Sansoya

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India for quashing/setting aside the impugned order dated 25.2.2011, Annexure P5, passed by the Court of Civil Judge, Senior Division, Hoshiarpur, vide which permission sought by Petitioner-Plaintiff for appointment of Local Commissioner for recording statement of his witnesses, who are residing at Germany, has been declined.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Facts relevant for the decision of present revision petition are that present suit for specific performance of agreement to sell dated 10.1.2007 allegedly executed by Respondent-Defendant in favour of Petitioner-Plaintiff has been filed by present Petitioner. Respondent-Defendant denied the very execution of the agreement. Issues were framed. Case was fixed for evidence of Petitioner-Plaintiff when the present application has been filed for appointment of Local Commissioner for examining the witnesses, who are allegedly residing at Germany.

It has been contended by learned Counsel for the Petitioner -Plaintiff that as the witnesses are residing at Germany, they could not come from there and hence, Local Commissioner be appointed for recording their statements. He has argued that agreement was executed at Germany as even Respondent-Defendant was at Germany at that time and however, Respondent-Defendant had denied this fact that he was at Germany and he even denied having executed agreement in favour of Petitioner-Plaintiff.

Learned trial Court has given sufficient reasons for declining the request of Petitioner-Plaintiff. It is for the Petitioner-Plaintiff to prove his case and he has to call the witnesses from Germany for appearing in this case. Respondent-Defendant is residing in India, even as per address given in the plaint. It has been rightly observed by learned trial Court that comparative more hardship would be suffered by Respondent-Defendant, if he is directed to go abroad for the purpose of getting the statements of witnesses of Petitioner-Plaintiff recorded than directing Petitioner-Plaintiff to call for his witnesses to India to depose. It is also noted that demeanour of witnesses is also important at the time of examination before the Court for deciding the dispute.

Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law has been well settled by Hon''ble Apex Court in Surya Dev Rai Vs. Ram Chander Rai and Others, , that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:

Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

Hence, the present revision petition is, hereby, dismissed being devoid of any merit.