1. Mr. Amin raises a very interesting point of practice. On September 29, 1941, by a consent Judge's order, at the instance of defendant No. 1, a commission was issued to Calcutta for the examination of certain witnesses. Liberty was given to the plaintiff to join in that commission and to examine witnesses on his behalf if he was so advised after giving the names of such witnesses to defendant No. 1 one week before being examined. Pursuant to the order the. plaintiff examined Gordhandas on commission.
2. Mr. Bahadurji who appears for the plaintiff closes his case without tendering the evidence of Gordhandas.
3. Mr. Amin for defendant No. 1 contends that as soon as the commission was returned the evidence taken on commission became evidence in the case and, without Mr. Bahadurji tendering it, it is evidence on which he is entitled to rely. Mr. Amin contends in the alternative that in any case Mr. Bahadurji is bound to tender that evidence.
4. Mr. Amin relies on Order XXVI, Rule 7, of the Civil Procedure Code, 1908. This rule provides that where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it was issued and the evidence taken under it shall form part of the record of the suit. Mr. Amin's contention is that as the evidence is already part of the record it is no longer necessary formally to tender it.
5. It has been a long standing practice on the Original Side of this Court that evidence taken on commission is always formally tendered, and objections to the evidence are considered when the evidence is being read by the counsel tendering it, and until it has been admitted neither party has the right to make use of it. Mr. Bahadurji, who is a very senior and a very respected member of the bar, tells me that, as far as his experience goes, which extends over a period of more than forty years, he has always known that to be the practice on the Original Side of this Court.
6. This point also arose for consideration in the Calcutta High Court, and the authorities to which I shall presently refer have clearly laid down that the practice on the Original Side of the Calcutta High Court is similar to the practice prevailing here and which has been vouched for by Mr. Bahadurji. In Hemanta Kumari v. Banku Bekari Sikdar (1905) 9 C. W.N. 794 Mr. Justice Bodily decided that the evidence taken on commission does not become evidence in the suit until the same has been tendered and read as evidence in the suit by the party in whose behalf it has been taken. Then in Kusum Kumari Roy v Satya Ranjan Das I.L.R (1902) Cal. 999 Mr. Justice Sale considered the practice prevailing on the Original Side of the Calcutta High Court and was of the opinion that the practice for a long time on the Original Side of that High Court had been that until evidence taken on commission had been tendered and admitted as evidence in the suit, neither party had the right to make use of it. He was further of opinion that that practice had been well founded in principle.
7. Apart from these authorities, I think that O. XXVI, Rule 8, itself contemplates that the evidence which is recorded on commission has got to be read as evidence before it becomes evidence, because Rule 8 says that evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered until the conditions laid down in Clause (a): of that rule are satisfied. In my opinion, under Rule 7 of Order XXVI, the evidence taken on commission forms part of the record in the same way as pleadings, affidavits and other documents of a suit form part of the record of that suit. If I were to give the construction to Rule 7 for which Mr. Amin contends, it would really mean that the evidence taken on commission, whether part of it was inadmissible or irrelevant or not, would automatically become evidence as soon as the commission was returned and it formed part of the record. That surely cannot be the construction of Rule 7, because it is well known that the commissioner who takes evidence on commission has no authority to reject any evidence. All that he can do is to note the objections taken by counsel appearing on behalf of the party while commission evidence is being taken, and after having noted the objections he has got to record the evidence given by the witnesses. It is only when the evidence is read before the Court and tendered as evidence that the questions of admissibility and relevancy are considered.
8. Mr. Amin relies on three other decisions of the Calcutta High Court.
9. First, Mr. Amin relies on a decision in Nistarini Dassee v. Nundo Lall Bose I.L.R (1899) Cal. 591, which was a decision of a Judge on the Original Side, and on the observation of Mr. Justice Stanley that having regard to the language of Section 389 of the Civil Procedure Code, 1882, (which corresponds to Order XXVI, Rule 7), the plaintiff was entitled to refer to the evidence as a matter of record. What happened in that case was that Mr. Bannerjee appearing for the plaintiff wanted to refer in his opening to the evidence of a certain witness taken on commission, and objection was taken; to his doing so by counsel on the other side, and all that the learned Judge held in that case was that as the commission had been returned and the evidence formed part of the record, counsel was entitled to refer to it in his opening. That decision did not really decide that the evidence on commission became evidence as soon as the commission was returned. In any case the subsequent decisions of the Calcutta High Court to which I have referred, namely, Hemanta Kumari v. Banku Behari Sikdar (1905) 9 C.W.N. 794 and Kusum Kumari Roy V. Satya Ranjan Das I.L.R (1903) Cal. 999 clearly lay down what the practice on the Original Side of the Calcutta High Court is.
10. Secondly, Mr. Amin relies on a later decision of the same Court in Man Gobinda Chowdhuri v. Shashindra Chandra Chowdhuri I.L.R (1907) Cal. 28 where the practice of the mofussil Courts in Calcutta was considered. In that case the Court of first instance, on the plaintiff's application to read the evidence of a certain witness taken on commission as a part of the record of the case, permitted him to do so. On appeal, the Subordinate Judge refused to refer to the evidence taken on commission as not being evidence in the case. From the judgment of the Subordinate Judge there was an appeal to the Calcutta High Court, and the Appellate Bench consisting of Holmwood and Sharfuddin JJ. held that the Subordinate Judge was wrong in excluding the evidence of the witness taken on commission which had been read by counsel for the plaintiff. It is to be noted that in this case the witness was examined by the defendants on commission, the deposition was filed on the record, and the defendants refused to tender that evidence. This evidence was then tendered by counsel for the plaintiff and was admitted by the Court of first instance. Under these circumstances the judgment of Mr. Justice Holmwood and Mr. Justice Sharfuddin does not in any way support the contention of Mr. Amin.
11. Thirdly, Mr. Amin relies on a decision of the same Court in Dhanu Ram Mahto v. Murli Mahto I.L.R (1909) Cal. 566. In this case the matter came on for hearing before the Subordinate Judge. The plaintiff's witnesses were not present in Court, and an application for adjournment was made and was refused. The plaintiff was unable to carry on the suit in the absence of his witnesses, and the Court dismissed the suit. Certain witnesses had been examined on behalf of the plaintiff on commission. The plaintiff appealed to the High Court of Calcutta, and it was contended by him in appeal that the Subordinate Judge should not have dismissed the suit but should have decided it on merits inasmuch as there was evidence on record on behalf of the plaintiff which had been taken on commission. The Court of Appeal in its judgment said that in its opinion where the circumstances mentioned in Section 390 (which corresponds to O. XXVI, Rule 8) which would exclude the deposition from being read as evidence in the suit did not exist, there was no reason why the deposition should be formally tendered before it could be treated as evidence in the case. The Appeal Court was considering a case from the mofussil, and though it considered the two decisions to which I have referred, viz., Hemanta Kumari v. Banku Behari Sikdar (1905) 9 C.W.N. 794 and Kusum Kumari Roy v. Satya Ranjan Das I.L.R (1903) Cal. 999 it came to the conclusion that those decisions only applied to the Original Side of the Calcutta High Court, and that as far as the mofussil was concerned, that practice did not govern the mofussil Courts, and in its view, on a true construction of O. XXVI, Rule 7, the evidence taken on commission became evidence as soon as the commission was returned. With great respect to the learned Judges I do not agree with the reasoning underlying their judgment. They refer to the argument advanced before them that the mere fact that the deposition forms part of the record does not make it evidence because everything that is on the record may not be evidence in the suit till it has been made evidence in the manner contemplated by law. In their opinion this was merely a plausible argument, and they further thought that it was merely an idle formality not contemplated by the Code to require that the deposition should be formally tendered in evidence. But later on in their judgment they observe (p. 571): 'If the opponent of the party who relies on the deposition has any objection to its admissibility, it is open to him to urge that point.' It is not suggested at what stage and under what circumstances that point could be urged if the evidence on commission is already evidence in the case. In any case this decision merely refers to the practice in the mofussil Courts and does not in any way detract from the earlier decisions of the Calcutta High Court laying down the practice on the Original Side of that Court.
12. It seems that in England the practice is similar to the practice prevailing on the Original Side of the Calcutta High Court and on the Original Side of this Court. Of course in England the practice is based on the Rules of the Supreme Court, and the particular rule on which the practice is based is differently worded from the rule of our High Court. Under O. XXXVII, Rule 18, of the Rules of the Supreme Court, 1883, no deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same may be offered unless the conditions laid down in that rule are satisfied. So that rule itself contemplates that a deposition has got to be given in evidence, and it is not already evidence merely because the commission has been executed and returned. Further, O. XXXVII, Rule 35, provides for notice having to be given by parties who want to make use of depositions filed or made before issue joined. This also suggests that a party who has obtained evidence on commission has got to make up his mind whether he wishes to make use of the deposition or not and to let the other side know about it in time.
13. I, therefore, hold that, both on the construction of Rule 7 and 8 of O. XXVI of the Civil Procedure Code and also in order to give effect to the long and well-established practice on the Original Side of this Court, the depositions of witnesses taken on commission have got to be tendered as evidence and admitted by the Court as evidence before they become evidence in the case.
14. As regards the second contention of Mr. Amin that Mr. Bahadurji is bound to tender the evidence of Gordhandas because he had Gordhandas examined on commission, I do not think there is any force in that contention. No Court can compel a counsel to lead any particular kind of evidence or tender any evidence if he does not wish to do so.
15. Mr. Amin relies on the term of the consent Judge's order. This order provides inter alia: 'And I do by and with such consent further order that the evidence so to be taken on commission be read as evidence in this suit subject to all just exceptions.' Mr. Amin argues that what the parties consented to was that the evidence taken on commission would be read as evidence at the trial. I do not think that that is a correct reading of that order. This is a formal proviso which is inserted in every order made by the Judge in chambers on a summons for commission where he orders the issue of commission. All that it provides is that subject to all just exceptions the evidence taken on commission is to be read as evidence in the suit. One of such just exceptions certainly would be if the evidence is not tendered by either party and if the parties come to the conclusion that it was not worth while tendering that evidence for one reason or another.
16. Finally, Mr. Amin contends that if Mr. Bahadurji does not wish to tender the evidence of Gordhandas, he should be allowed to do so. In my opinion Mr. Amin is entitled to tender the evidence of Gordhandas and make that evidence as part of his own case. There is nothing in O. XXVI, Rule 8, which contemplates that evidence taken under a commission could only be tendered by the party who had the particular witnesses examined on commission. Once the commission is returned and the depositions form: part of the record, it is open to either party to tender those depositions as evidence. As a matter of fact in Kusum Kumari Roy v. Satya Ranjan Das(1) evidence had been taken on commission by the defendant and the plaintiff wanted to take advantage of that evidence without tendering it and without making it part of her case, and Mr. Justice Sale in his judgment specifically refers to this fact in deciding that the plaintiff was not entitled to rely on that evidence, she not having tendered it and made it part of her case.
17. I would, therefore, permit Mr. Amin to tender the evidence of Gordhandas on commission and will decide its admissibility on its merits.