Satish Kumar Raina vs Anju Raina

I have placed myself outside the jurisdiction of this court, therefore examine me on commission. This is the sum and substance of the grievance

of the petitioner.

The present petitioner instituted a petition seeking divorce. This was preferred on 2.1.1996. Cruelty and deserting are the twin grounds for

seeking divorce. After filing the petition, the petitioner appears to have gone to Switzerland. This litigation nevertheless is being persued by him.

Respondents has also instituted a petition for restitution of conjugal rights. Both the petitions have been clubbed together. A joint trial is on.

Issues were framed on 29.8.1998. The petitioner is to lead evidence. In the list of witnesses furnished by the petitioner, five names have been

included. Petitioner has himself described as a witness. Two other witnesses are residing in Switzerland. The petitioner submits that he has two

other ladies namely Alexandra and Claire on examined on commission in Switzerland. The trial court was of the opinion, that the petitioner who has

moved by the court by filing a petition under the Hindu Marriage Act seeking divorce on the grounds indicated above, should appear in the court

himself. The other question whether the said two ladies are to be examined on commission or not it was said would be gone into at a latter stage. It

is this order passed on 27.8.1999 which is subject matter of challenge in this revision petition. The further fact is that another order has been

passed by the trial court. As petitioner was not producing his evidence, his right to lead evidence has been closed. An order to this effect passed

on 7.11.2000 is sought to be assailed by preferring another petition bearing no. CMP (CR) 627 2001.

The basic argument which is sought to be urged is that the petitioner is in Switzerland and he should be examined on commission.

The learned counsel for the petitioner places reliace on Section 76 of the Code of Civil Procedure, as applicable to the State of Jammu. He

submits that in terms of this provision a commission for the examination of a person may be issued to any private person or to any court in the State

or to any court in the State not being High Court situate in the Indian Union or beyond the limits of Indian Union continued by the authority of the

Government of India or to a court situate in any part of the Commonwealth other than the Indian Union or to a Court of any foreign country having

alliance with the Government of India can be requested to examine a person on commission. It is submitted that this a special provision, there being

no corresponding provision in the Code of Civil Procedure is applicable to the rest of the country.

The question which is required to be gone into is as to whether the petitioner who has chosen a forum by filing a petition in the Courts at Jammu,

can be examined on commission.

The general rule is that the evidence of a witness should be recorded in a public court and tested by a crossexamination. An order for examining

of a witness on commission is primarily in the discretion of the court. The grounds upon which a commission has to be issued or is not to be issued

cannot be nullified because the person is a man of rank or is a mank of social status. An order passed with a view to direct a party to be examined

on commission or not to be examined on commission, is basically a discretionary order and is normally not to be interfered within the exercise of

revisional jurisdiction. Unless it is shown that there was wanton abuse of the process of the court, or that the trial court has gone wrong on some

vital particulars, interfere is not to be made by a court of revision.

There are judgements to the effect that decision granting permission or refusing it does not fall within the term ""case decided"" See Shantibai vs.

Motiram Sitaram, AIR 1946 Sind 30 and AIR 1934 Allahab 37. The decision of this court reported as Sri Ram vs. Ashwani Kumar and Others,

AIR 1978 J and K78, is to the effect that such an order is revisable. As such, so far as this court is concerned, it has to be held that a decision by

which commission is appointed or rejected would be revisable under Section 115 of the Code of Civil Procedure.

Two questions arise. These are :

i) as to whether a person who has moved a court can seek a direction that he be examined on commission

ii) whether the order passed by the trial court is such an order which has caused failure of justice and is required to be revised.

The learned counsel for the petitioner has placed reliance on a decision of the Madhya Pradesh High Court and submits that even a plaintiff can

be examined on commission. This decision is reported as Dattaji Rao alias Rahe vs. Smt. Ganga Bai, AIR 1988 M.P. 178. The Madhya Pradesh

High Court has expressed an opinion that there is no distinction between a party and a witness and therefore, a plaintiff can be examined on

commission as a witness. One of the factothers which weighed with the Madhya Pradesh High Court was that the trial court had exercised

discretion in favour of the plaintiff and had issued a commission. This direction was not challenged for quite some time. Somehow or the other, the

Commission was not executed for a long time. Second order came to be passed. In these circumstances, the Madhya Pradesh High Court

expressed an opinion that the plaintiff can be examined as a witness on commission. What weighed with the learned judge was that there should be

fairtrial.

The Patna High Court in the case reported as (Babu) Gulab Rai vs (Babu) Mahendra Nath, AIR 1935 Patna 220, has expressed an opinion

that the case of the plaintiff stands on a different footing from that of a defendant or a witness when the question arises as to whether a commission

should issue for examination or not. It was noticed that no doubt, the Code of Civil Procedure makes no distinction between a plaintiff or a

witness, but at the same time observed that when the plaintiff has a choice of forum and has filed a suit in the forum of this own choice, he is not

entitled to have a commission issued, unless the circumstances should be exceptional. As a matter of fact, in another decision of the same court

reported as AIR 1925 Patna 125, Akbar Ali Khan vs. Hervert Francis, the precuse question as to whether a plaintiff in foreign territory asking for

issuance of a commission, is required to be examined on commission was examined. A Division Bench of the Patna High Court in the above case

observed that the court will be very reluctant to accede to the request of the plaintiff for issue of a commission to examine him abroad, except upon

very strong grounds. The plaintiff is entitled to choose his own forum and having chosen the forum, he is not entitled to state ""I reside outside the

jurisdiction of the court, therefore, examine me on commission. This is not the general principle.

The Division Bench of Patna High Court referred to a decision reported as Nadeem vs. Bessett 25 Chancery Division Ch. D 21. What was

said by the Chancery Court and was noted by the Patna High Court is being reproduced below :

The great contest, however is as to the examination of the plaintiff. The examination before a special examiner may be ordered if the court

considers it necessary for the purpose of justice"". No case made that it is practically impossible for the plaintiff in attend at the trial, and what we

have to consider is whether under the circumstances of the particular case justice requires that he should be examined in this way. It appears to me

that it is not consistent with the due administration or justice to allow the plaintiff to give evidence in his own behalf without attending to be orally

crossexamined.

The court had to exercise its discretion as to granting a commission, and this court would be very unwilling to interfere with the exercise of that

discretion by the court below. Each case must depend upon its own circumstances and no rule as to the exercise of that discretion would be laid

down. If this court saw that the discretion had been wrongly exercised, it saw that the case in all its bearings was not laid before the court below, if

it saw that the court below mis apprehended an important part of the case, seemed to have treated the matter as if it was merely a commission to

examine witnesses"".

In a decision of the Andhra Pradesh High Court reported as AIR 1979 AR 8300, the widow of a judicial officer wanted to be examined on

commission. Her prayer was declined and no interferences was made by the High Court.

From the judicial precedents quoted above it becomes apparent that a plaintiff who has choosen a forum has normally to appear and depose in

the court. He is not be examined on commission. Discretion has to be exercise in his favour in the rarest of the rare cases. This is not a case where

such a discretion can be exercised. As a matter of fact, the trial court has already exercised discretion in the matter. No failure of justice has

occasioned to the petitioner. In these circumstances, it would not be apt for this court in the exercise of revisional jurisdiction to interfere with the

order passed by the trial court. This petition as such is found to be without merit and is dismissed. As a consequence of this, the second revision

petition preferred would also stand dismissed, with a rider that the petitioner be given one opportunity to lead his evidence. For this purpose, the

trial court would fix a date. The respondents is held entitled to costs of this litigation. These are fixed at Rs. 3,000/ in each case.