1. In this case the lower Court has refused to issue a commission for the examination of two of the petitioner's witnesses, who live more than 200 miles from the Courthouse, and cannot therefore be compelled to attend by-ordinary process.
2. The petitioner contends that, as a matter of law, the Court was bound to issue a commission. The respondent contends that it was entirely a matter for the discretion of the Court. The point is one on which reported authorities speak with an uncertain voice.
3. The practice in English Courts undoubtedly is that it is a matter of judicial discretion for the trying Court to issue a commission and the Calcutta High Court has usually interpreted the pertinent sections of the old and the present Civil Procedure Codes in that sense; vide Amrith Nath Jha v. Dhunput Singh Bahadoor (1873) 20 W.R. 253 Adamji Khadi Bhai v. Issuf Ahmed Mulla (1912) 16 I. C. 750. and A. E. Saleji v. Ahmed Musaji Saleji (1913) 19 I. C. 643. though in Amirth Nath Jha v. Dhunput Singh Bahadoor (1873) 20 W. R. 253 it was held that, ordinarily, where the witness is a stranger residing beyond the limit fixed by law for the service of direct process, and is not a person under the control of the party applying for the commission such a commission should issue. Huree Bass Bysack v. Meer Moazzum Hossein (1871) 15 W.R. 447. may be read as laying down that a party has a legal right to have a commission issued.
4. In the Madras High Court, a single Judge in Chinnu v. Sambanda Moorthi (1914) 23 I. C. 522. held that the matter is one of judicial discretion, while a Bench in Sitamma v. Subraya : (1911)21MLJ889 . held that it was a matter of statutory right. From the arguments in the latter case it clearly appears that the issue argued was whether a party had a statutory right to a commission or whether the Court had discretion to refuse it, and the Court held that the former view was correct. In Veerabadran Chetty v. Nataraja Desikar I.L.R. (1905) Mad. 28. though the matter of the issue of a commission to a witness more than 200 miles from the Court-house did not arise it was held that the Court had power to refuse direct process in its inherent power to prevent abuse of its process.
5. The balance of authority is in favour of the view that I.L. R. (1905) Mad. 28. ordinarily, in the case of a witness not under the control of the party asking for the commission who resides beyond the limit fixed under Order XVI, Rule 19 (b), Civil Procedure Code, a commission should issue as a matter of right, unless the Court is satisfied that a party is merely abusing its authority to issue process, and (2) that it is not for the Court to decide whether the party will be benefited thereby or not; that is a matter entirely for the party.
6. In the present case, the two witnesses for whom a commission was asked are pleaders residing at Salem, more than 200 miles from the Court-house, one being the father of the petitioner. Neither is under his control. The lower Court has given no definite ground for refusing a commission, and certainly it does not say that the petitioner was attempting to abuse its power of issuing process. I am satisfied, that, even if the matter of the issue of the commission was one within its judicial discretion and not a matter of statutory right, it has not exercised that discretion judicially.
7. Some useful guidance may be gained from a comparison of the language of Order XXVI, Rule 4, Civil Procedure Code, with that of Rule 1. In Rule 1 the word ' may ' must mean ' is given authority to.' I am not prepared to accept the respondent's suggestion that the word ' may ' is explained by, and refers to, no more than the alternative method prescribed of proceeding either by ' interrogatories or otherwise.' I think that Rule 1 clearly means that, in the case of persons who, owing to illness, etc., are unable to attend the Court, the Court cannot refuse to issue a commission. If that is not the meaning: of the rule then it is useless. And if the word ' may ' implies so much in Rule 1, it is reasonable to conclude that in Rule 4, where the same phrase is used, it has the same meaning; that is, the Court must, when moved, issue a commission.
8. My view therefore is that the law directs the Court to issue a commission in a case like the present, unless it is satisfied, for reasons to be stated, that the request for the commission is an abuse of its process, and that the lower Court has therefore acted contrary to law. In a case where the lower Court has not obeyed the law, I think it is clearly the duty of this Court to interfere, even in interlocutory proceedings, rather than permit a trial to go on, on an illegal course, which must entail unnecessary expense to the parties and useless waste of time.
9. I therefore set aside the lower Court's order and direct it to issue the commission prayed for by the petitioner, but before issuing the commission it should decide whether the third defendant, the contesting respondent of this petition, is a necessary party to the suit. The petitioner will get his costs in this petition in any event from third defendant.