Indra Mehendirata vs Raj Mohini And Others
1998 Latest Caselaw 764 Del

ORDER

DR. M.K. Sharma, J.

1. In a suit filed by the plaintiff against the defendants praying for decree for partition of the suit property and for rendition of accounts, an application has now been moved by the defendant No.2 seeking to examine Sh.K.N.Kaura, the only surviving attesting witness to the will dated 27th may, 1972 executed by Sh.Rai Bahadur Tulsi Ram, on commission. The aforesaid application has been filed by the plaintiff under Order 26 Rule 5 CPC. It is stated in the said application that the aforesaid Sh.K.N.Kaura was the attesting witness and is the only surviving attesting witness to the will of Sh.Rai Bahadur Tulsi Ram. It is further stated in the application that Sh.K.N.Kaura had informed the second defendant that it would not be possible for him to appear in July on account of him being too old to travel alone, being 90 years of age. It is also stated that the said Sh.K.N.Kaura talked to the defendant No.2 on telephone and told him that his blood pressure had gone up and he had been advised by the doctor not to travel by air from Florida, U.S.A. wherein he has settled for the last 5-6 years.

2. The issue that is arising for consideration in the suit is as to whether the will dated 27th May, 1972 was duly executed by Sh.Rai Bahadur Tulsi Ram, as alleged by defendants 1 and 2. Sh.Rai Bahadur Tulsi Ram has died. There were two attesting witnesses to the aforesaid will, one being Sh.Dalip Chand Dhir and the other being Sh.K.N.Kaura. Sh.Dalip Chand Dhir had died long ago and, therefore, Sh.K.N.kaura is the only surviving witness to the aforesaid will. He is now permanently settled in the Florida, U.S.A. which is outside the jurisdiction of this court. It is stated by the defendant No.2 in the present application that examination of the said witness Sh.K.N.Kaura is vital to the case of the defendants and, therefore, the court should allow the request of the defendant no.2 to get the said witness examined, on commission at Florida, U.S.A.

3. The aforesaid application filed by the defendant No.2 is opposed by the plaintiff contending, inter alia, that no proof of said alleged illness or medical advise has been annexed with the application. It is also stated that since Florida is connected to New Delhi by air therefore, the said witness should be produced before the court by the defendant No.2, if he so chooses.

The application was further contested on the ground that evidence of an at testator of a will is very material piece of evidence but in case, the witness is not brought before this court, the court would be deprived of the opportunity to note the demeanour and watch the witness while being examined. In the light of the aforesaid statement made by the defendant No.2, let me now consider whether a direction could be issued for examination of the said witness, on commission.

4. My attention was drawn to the provisions of Order 16 Rule 19 CPC which provides that no witness is to be ordered to attend in person to give evidence unless he resides within the local limits of the Court's ordinary original jurisdiction. The aforesaid provision is, however, regulated by a proviso which provides 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.

5. Thus, in view of the proviso a court can order attendance of any person notwithstanding anything contained in sub-clauses (a) and (b) of Order 16, Rule 19 provided transport facilities by air is available between to places mentioned in Order 16 rule 19 and the witness is paid the fare by air.

6. Reference may also be made in this connection to the provisions of Order 26 Rule 5 CPC. Rule 26 provides for examination of witness through commission. Rule 5 deals with examination of witness not within India, by commission or request. It provides that where any Court to which application is made for the issue of a commission for the examination of a person residing at any place not within India is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request. The power vested for examination of a witness on commission is discretionary but the said discretion is to be exercised judiciously taking into consideration o the facts and circumstances of the case coupled with necessity and requirement.

My attention was drawn to a decision of this court in Mrs. Sunita Jagmohan Verma vs. Jagmohan Verma . In the said decision this court has held that the issue of a commission under Order 26 Rule 4 CPC in a case where the personal attendance of a witness cannot be enforced because of the restriction imposed by Order 16 Rule 19, although discretionary with the Court, should ordinarily be allowed as a matter of course. It was further held that such powers should be exercised for the simple reason that a party cannot be punished merely because it feels helpless in procuring the attendance of a witness and the court too is powerless to order such a witness to appear in person. It is stated that the court, of course, must be satisfied about the compelling necessity to examine such a witness. In the said decision this court further held that the object of the proviso to Order 16 Rule 19 CPC clearly is that if the witness is residing at a place which is connected with the place of the court-house by air, the court may, instead of issuing a commission, direct in appropriate cases that summons be issued for attendance of the witness in person on his being paid fare by air. The court , however, held that such an order cannot be passed mechanically in each and every case and before resorting to this provision the court must make sure that the witness (applicant) is affluent enough to afford payment of fare by air otherwise it may result in undue hardship and even miscarriage of justice in many a case. The court also held that the demeanour of a witness is quite an important factor in appraising the evidence of a witness, especially when a witness is deposing to facts from his personal knowledge but it is not so important as to take away the right of a party to issue of a commission in deserving cases where the testimony of the witness is very material but he is not under the control of the party wanting to examine him and his personal attendance cannot be enforced by coercive process of law. It was also held that the court must consider all relevant aspects of the matter before it exercises its discretion one way or the other so as to advance the cause of justice and fair play.

7. In the light of settled principles of law, let me examine the facts of the present case and consider all relevant aspects of the matter before I finally come to a decision on the issue exercising my discretion one way or the other so as to advance the cause of justice and fair play.

8. The defendant No.2 has sought to examine said Sh.K.N.Kaura , stated to be only surviving witness of the will dated 27th May, 1972 left behind by late Sh.Rai Bahadur Tulsi Ram.

9. This court in the aforesaid suit fixed 21st and 22nd July, 1998 for evidence of the defendants and 23rd July, 1998 for evidence of the plaintiff. The suit is of the year 1976. Taking into consideration the aforesaid fact the trial of the case is being expedited directing that the parties should produce their evidence on their own responsibility except the afore-

said witness.

The first issue framed in the suit relates to the proof of the will dated 27th May, 1972 and onus of the proof of the said will has been placed on defendants 1 and 2. The only surviving attesting witness to the said will, namely, Sh.K.N.Kaura is settled in Florida, U.S.A.

10. On 22nd May, 1998, an application was filed by the defendant no.2 in this court which was registered as I.A.No.4793/98. In the said application, it was stated by the defendant No.2 that the said Sh.K.N.Kaura has expressed his inability to appear before the court on 21st July, 1998. It was further stated that the said Sh.Kaura has promised to appear before the court if an adjournment is sought for change of date for his examination. It is stated that the said Sh.Kaura has promised to appear before the court , if his request for change in the date is acceded to,in the month of December, 1998 as Sh.Kaura is to make necessary arrangements for his safe travel to India and back to States since Sh.Kaura is 90 years old and he is too old to travel alone. In the said application the defendant No.2 requested for fixing the dates of trial for examination of the said Sh.K.N.Kaura during the first fortnight of December, 1998.

Order on the said application was deferred. Subsequently, the defendant No.2 moved the present application seeking for the aforesaid relief. It may be indicated that alongwith the aforesaid application no proof of the alleged illness or medical advise was annexed. However, the defendant No.2 on 25th August, 1998 has placed on record a letter dated 18th August, 1998 of Sh.K.N.Kaura written to the defendant No.2. In the said letter Sh.Kaura has stated that he has been in the grip of cough, cold , bad throat involving mild temperature. He has also stated that the Doctor has advised him not to take risk of air travel for want of physical fitness and that he is thus handicapped to undergo strain of such a long journey to New Delhi at the cost of his life. A medical certificate is attached thereto. The said medical certificate is dated 10th August, 1998 wherein it is stated that the said Sh.K.N.Kaura was seen in the office of the doctor and that he is 91 years old and suffers from hypertension and weakness and he is advised not to travel long distance by air. The defendant No.2 in his application has stated that in terms of the provisions of Code of Civil Procedure, he is ready and willing to bear the expenses of the commission.

11. The demeanour of a witness is quite an important factor in appraising the evidence of a witness, especially when a witness is deposing to facts from his personal knowledge. The suit is for partitioning the suit property and the plaintiff is claiming a share in the said property. The aforesaid claim of the plaintiff is being contested by defendant No.2 contending, inter alia, that in view of the will left behind by late Sh.Rai Bahadur Tulsi Ram, the plaintiff is not entitled to any share in the suit property. Thus, the claim of the plaintiff hinges on the alleged will left behind by late Sh.Rai Bahadur Tulsi Ram. It is also the admitted position that the only surviving attesting witness to the aforesaid will is Sh.K.N.Kaura. The said witness is now permanently residing in Florida, U.S.A. Earlier the stand taken by him was that he could come to New Delhi to give his evidence provided he is accompanied by some one. Now , the stand taken by him is that he is too old and suffers from hypertension and weakness and has been advised by his Doctor not to travel by air long distance.

12. In my considered opinion, allowing the said witness to be examined on commission would entail heavy expenses on the part of the plaintiff also as he has to travel all the way from New Delhi to Florida accompanied by his counsel. The defendant No.2 has stated that he is under an obligation to pay the expenses only of the commission if such a commission is issued by this court. When I put a direct question to the counsel appearing for defendant No.2 whether his client is ready and willing to pay the expenses of the plaintiff and his counsel, he declined to bear such expenses as he is not under obligation to pay for their fare. The fare itself would, at the minimum, cost more than Rs.50,000/- for one person. The defendant No.2 appears to be an affluent person since he has undertaken to bear the expenses of the commission. Florida is also connected to New Delhi by air, although travelling might be strenuous. It is stated on oath through the earlier application filed in this court by the defendant No.2 that the said witness is willing to come to New Delhi and give his evidence in court if some time is granted to him for doing so.

13. Recording of evidence of such a vital witness in court is also necessary as the entire suit and the claim of the plaintiff and thereof hinges on the proof of the said will. The conduct and the demeanour of the witness would be vital in coming to the conclusion for the court as to whether the will dated 27th May, 1972 is valid and legal or not.

14. Taking all the aforesaid factors into consideration and in order to advance the cause of justice and fair play, I am of the considered opinion that the said witness be examined in court instead of examining him on commission. The application stands dismissed. The defendant No.2 shall produce the said witness in the court on 11th December, 1998.