C.R.No.6277 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.6277 of 2011 Date of decision: 17.10.2011 Mrs. Mehtab Matwala ...Petitioner Versus Gurjit Singh Kalra and others ... Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Puneet Sharma, Advocate for the petitioner. Ajay Kumar Mittal,J. 1. The plaintiff-petitioner is assailing the order of the trial Court dated 30.9.2011, Annexure P.5 whereby an application filed by defendant Nos. 1, 2, 4 and 9 for appointment of Local Commissioner for recording the statements of defendant Nos. 1, 2, 4 and also the witnesses of the Will in United Kingdom has been allowed. 2. Briefly, the facts may be noticed. The plaintiff-petitioner filed a suit for partition claiming 1/6th share of the houses bearing Nos.266 and 267 and shop No.29, Kalra Market, Opp.Narender Cinema, Jalandhar being the legal heir of her deceased parents. The suit was contested by defendant Nos. 1 to 4 by filing written statement. The plaintiff led her evidence. Thereafter, defendant Nos. 1, 2, 4 and 9 moved an application for appointment of Local Commissioner for recording the statements of defendant Nos. 1, 2 and 1 C.R.No.6277 of 2011 4 who are residing in United Kingdom and also witnesses of the Will. The application was contested by the petitioner by filing a reply. Even defendant Nos. 5 to 7 opposed the application filed by defendant Nos. 1, 2, 4 and 9. The trial court allowed the application vide order dated 30.9.2011. Hence this revision petition. 3. Learned counsel for the petitioner submitted that the order passed by the trial Court was in violation of Order 26 Rule 5 of the Code of Civil Procedure (in short, “the Code”) as the circumstances did not warrant appointment of Local Commissioner for examination of defendant Nos. 1, 2, 4 and also the attesting witnesses of the Will. He submitted that on earlier occasions, defendant No.2 had been appearing before the trial court on each and every visit and in such circumstances, appointment of Local Commissioner for their examination was not justified. Reliance was placed on decision of Delhi High Court in Indra Mehendirata v. Raj Mohini, 1999(1) PLR (Delhi) 10 and decision of Rajasthan High Court in Dutch Ophthalmic Research Centre v. Ultramed Private Limited, AIR 2005 Raj. 213. 4. After giving careful consideration to the submissions made by learned counsel for the petitioner, I do not find any merit therein. 5. Order 26 Rule 5 of the Code provides for commission or request to examine witness not within India and reads thus:- “Commission or request to examine witness not within India – 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 2 C.R.No.6277 of 2011 request.” 6. A plain reading of the aforesaid rule shows that the Court if felt satisfied could appoint a Local Commissioner for examination of the witnesses. Normally, the following ingredients are required to be satisfied before Commission for examination of a witness not within India is appointed: i) Court is to see whether the witness to be examined outside India is necessary or not; ii) Whether the said witness is unable to attend the Court on account of being sick, infirm or otherwise unable to attend for any valid reason; 7. Application for examination on Commission to record the statements of Shri Gurjit Singh Kalra, Shri Ranjit Singh Kalra, Smt.Naridner Kaur – defendants No.1, 2 and 4 and witnesses – Shri Daljit Singh and Sh.Jagjit Singh was filed on the ground that defendants No.1, 2 and 4 are permanently settled in U.K. and hold British Passports whereas defendant No.3 is permanently settled in Canada holding Canadian passport. It was further averred that defendant Nos. 1 to 4 are senior citizens and not keeping good health. Defendants No.1 and 4 are under medical treatment and had been advised not to travel abroad. Medical certificate had also been appended in support thereof. The applicants further alleged that there were difficulties for foreign nationals to get VISA for every visit to India and a gap of two months is required between every such visit to India by any foreign national. Similar VISA complications had been referred relating to attesting witnesses Shri Daljit Singh and Shri Jagjit Singh. Citing the VISA complications, to overcome medical 3 C.R.No.6277 of 2011 problems of the defendants and the witnesses and also to avoid delays, prayer was made to record their statements at the expense of defendants No.1 to 3. 8. The trial Court while adjudicating the application had observed that appointment of the Local Commissioner would expedite the decision of the case and expenses of the Local Commissioner and also the attesting witnesses who were to come from Australia and Canada and for the counsel for the parties were to be borne by the defendants for their boarding, lodging and travelling. The finding recorded by the trial Court is as under:- “After hearing arguments advanced by learned counsel for parties and after going through the entire record produced on the file, I am of the opinion that there is weight in the arguments advanced by learned counsel for applicant. Apart from that appointment of Local Commissioner will help in expediting the present case. Accordingly, the application in hand is hereby allowed and Sh.Naveen Chadha, Advocate is hereby appointed as Local Commissioner and his fee is assessed to be Rs.10,000/- to be paid by the defendants. Local Commissioner is directed to get record the statements of defendants as well as that of attesting witnesses in the presence of learned counsel for parties. It is made clear that all the expenses of Local Commissioner as well as that of learned counsel for parties will be borne by the defendants and these expenses also includes boarding, lodging and travel expenses also. Local commissioner can take the judicial file from the Ahlmad concerned against proper receipt. Ahlmad is also directed to page mark the present judicial file. Local Commissioner is further directed to 4 C.R.No.6277 of 2011 submit his report on or before 14.11.2011.” 10. Now, referring to the judgments on which reliance has been placed by learned counsel for the petitioner, in Dutch Ophthalmic Research Centre’s case (supra), the Rajasthan High Court examining the scope of Order 26 Rule 5 of the Code noted in that case that the Commission was sought to examine a witness outside India only on the ground that the witness was unable to attend the Court in the month of March as he was busy and was unable to attend Court proceedings for continuous seven days. The Court observed that this could not be a ground for allowing examination of a witness outside India on Commission. The Delhi High Court in Indra Mehendirata’s case (supra) while considering an application filed by defendant No.2, on being asked to bear the expenses of the plaintiff and his counsel from New Delhi to Florida, refused to pay the same. The Court taking this factor into consideration had upheld the order of the trial court refusing examination of a witness outside India on Commission. Such being not the facts herein, the judgments do not support the case of the petitioner. 11. In view of the above, there is no error of jurisdiction or illegality or perversity which could be said to be there in the order of the trial court warranting interference by this Court. 12. Finding no merit in the revision petition, the same is dismissed. October 17, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 5