Sanjay Karol, J.
1. Petitioners, who were defendants, in terms of the present petition, under Article 227 of the Constitution of India, lay challenge to the order dated
20th June, 2016, (hereinafter referred to as the “impugned orderâ€), passed by learned Civil Judge (Junior Division), Court No.4, Shimla in Civil
Suit No.66-1 of 2015/09, titled as Shiv Chand & Ors. vs. Ramesh Chand & another, whereby their application filed under Order 26 Rule 1E-4A read
with Section 151 of the Code of Civil Procedure, 1908, (hereinafter referred to as the “Codeâ€) stands rejected.
2. The reasons assigned by the learned Judge for rejecting the application are (a) despite 12 opportunities afforded, defendants have not examined
their witnesses; and (b) there is no document on record evidencing the fact that the person sought to be examined on commission, is not in a position to
appear in Court as a witness.
3. With vehemence, Mr.G.C. Gupta, learned Senior Counsel appearing for the plaintiffs, opposing the petition, emphasizes there being no illegality and
perversity in the impugned order.
4. On the other hand, Mr.Satyen Vaidya, learned Senior Counsel, emphasizes perversity in the impugned order on account of non consideration of
attending facts and circumstances.
5. Plaintiffs (respondents herein) filed a suit for declaration, claiming themselves to be owners-in-possession of the suit land. The defendants, as is
evident from the written statement, have vehemently opposed the same.
6. From the pleadings of the parties it can be inferred that the suit is primarily based on an agreement allegedly executed by the defendants’
mother in favour of the plaintiffs/their predecessor-in-interest. The agreement which is in the shape of a receipt is attested by two persons as
witnesses, one of whom, i.e., Dila Ram, is alive and the defendants want him to be examined on a commission. This Court is of the considered view
that testimony of this witness shall have a direct bearing on the outcome of the suit.
7. Record reveals that suit was instituted on 8.1.2009. The issues were struck on 15.7.2011, whereafter plaintiffs filed an application, seeking
amendment of the plaint and it took more than one year for such application to be decided, vide order dated 28. 5.2010.
8. The replication to the amended written statement and the counter claim was filed on 8.12.2010, whereafter an endeavour was made by the Court to
have the matter amicably resolved, but on 15. 11.2011, the Court recorded that such attempt did not yield any result. Accordingly, fresh issues were
framed and the matter was kept for recording of plaintiffs’ evidence. It took more than one year for the plaintiffs to complete their evidence. It is
equally true that since the year 2012, defendants have taken several opportunities for completing their evidence. Though it be also observed that it is
not a case of total non production/non-examination of any witnesses, it took time for the defendants witness to be examined.
9. Record reveals that on 22.10.2014, the very witness who is now sought to be examined on commission, was present in the Court, but was
discharged as a request was made by both the counsel to have the matter adjourned for the reason that “they have to go due to some urgent
workâ€. Subsequently, application in question was filed on 8.10.2015, which now stands disposed of vide impugned order dated 20.6.2016.
10. Record does establish that more than 12 opportunities were afforded to the defendants to examine their witnesses, but it is not one of those cases
where no witness was examined or was not present. On one count or the other, for several reasons, inter alia, “adjournment by counselâ€,
“Presiding Officer on leaveâ€, and “relevant witness not presentâ€, the matter was adjourned. As such, it cannot be said that the conduct of the
defendants alone has resulted into procrastination of trial.
11. A bare perusal of the document, which is sought to be proved, reveals the witness Dila Ram to be a rustic villager. This Court infers such fact
from the signatures, allegedly, being that of this witness. Significantly, it is this document, which goes to the root of the matter and examination of the
witnesses is crucial, material and relevant.
12. It is a settled principle of law that interest of justice cannot be allowed to suffer solely on account of fault of the counsel or the parties.
13. Mr.Satyen Vaidya, learned Senior Counsel, invites attention of this Court to the medical record of the witness, which is not disputed before this
Court, though what Mr. G.C. Gupta, learned Senior Advocate, argues is that the witness is not incapacitated to attend the Court for the purposes of
his examination.
14. Having perused the medical record, issued by a Government Hospital, one finds the age of the witness to be 81 years. He is a Senior citizen
undergoing medical treatment. He is suffering from heart ailment. It is true that he is not incapacitated or bed ridden to attend the Court but then it is
equally true that he is suffering from heart ailment and is an old man. He is not the defendants’ relation or is in their control. Hence, taking a
holistic view of the matter, this Court is of the considered view that examination of the witness is necessary which can conveniently and at the earliest
be got done with the issuance of a commission.
15. Rule 1 of Order 26 of the Code empowers the Court to issue a commission though by virtue of the proviso, so inserted by way of an amendment in
the year 1977, reasons are to be recorded. Significantly, by virtue of insertion of Rule 4-A in the very said Order, since the year 1999, the Court,
notwithstanding anything contained in the said Rules, is equally empowered, if the interest of justice so warrants, to issue a commission within its
jurisdiction. In fact interest of justice is not the only ground, it is also expeditious disposal of a case or any other reason, which undoubtedly has to be
analogous to the latter.
16. In Salem Advocate Bar Association, Tamil Nadu vs. Union of India, AIR 2005 SC 3353, the Supreme Court observed that the will of the
legislature in amending the code which has provided for recording of evidence by the commissioner for saving court’s time taken for the said
purpose, cannot be defeated merely on the ground that the Court would be deprived of watching the demeanor of the witnesses. Further, in some
cases, which are complex in nature, the prayer for recording evidence by the Commissioner may be declined by the Court. It may also be noted that
Order XVIII Rule 4, specifically provides that the Commissioner may record such remarks as it thinks material in respect of the demeanor of any
witness while under examination. The Court would have the benefit of the observations if made by the Commissioner. Further the court has observed
that Order XVIII Rule 19 and Order XXVI Rule 4-A would override Order XVII Rule 5(a) and (b).
17. Though not argued, but then there can be a situation where the plaintiff may insist that the evidence can be led by an affidavit and as such, there is
no requirement for appointing a Commission. This argument is self-defeating, apart from not yielding any fruitful result, for afterall the witness has to
be cross-examined which in the given facts and circumstances, may not be possible to do so in the Court. On such analogy, it can also be contended
that in every case a commission be appointed for examining the witness. Even such contention is legally unsustainable, for such commissions are not
to be issued as a matter of routine but the Court has to judiciously exercise such discretion vested in it. Certainly, there cannot be any straitjacket
formula in that regard and unless so required to lay down the parameters, is best left to the conscience of the judge, apart from exercise of such
jurisdiction not to be perverse or illegal.
18. For some reason or the other, Mr.Satyen Vaidya, learned Senior Counsel, submits that the witness, considering the age, is reluctant to come to the
Court.
19. This may be on account of his earlier experience in the Court.
20. Under these circumstances, this Court is of the considered view that examination of the witness is important for adjudication of all the controversy
in issue, subject matter of lis and disposal of the case can be expedited. Interest of justice lies in having the witness examined on commission.
21. Accordingly, application under Order 26 Rule 1E-4A, read with Section 151 of the Code for examination of witness, namely, Dila Ram, is allowed.
Equally petition is allowed on the following terms:
(a) Parties are directed to appear before the Court below on 29.8.2018, on which date, a date shall be fixed for examining the witness.
(b) The Court shall pass an order, in accordance with law, appointing a suitable person as a commissioner to record the statement of Dila Ram.
(c) With the examination of the said witness, the Court shall fix a date for examination of the defendants witnesses which the defendants shall
positively produce at their own risk and responsibility. Not more than 2/3 dates shall be granted for such purpose. However, for official witnesses,
facility of Process Serving Agency shall be provided and availed.
(d) Suit instituted in the year 2009, trial is expedited, and be decided within a period of one year from today. Parties shall fully cooperate. With the
aforesaid observations, present petition stands disposed of alongwith pending application(s), if any.
