1. This is a petition under Section 115, Civil Procedure Code, to revise the order of the learned Dist. Munsif, Ongole in I. A. 405/61 in O. S. 189/60. That application was tiled under Order 26, Rule 4 and Section 151, C. P. C. for the issue of a commission to examine and record the evidence of Sri M. V. Dixit, a Hand-writing Expert of Nagpur. The suit O. S. 189 of 1960 was laid for specific performance of a contract of sale dated 25-7-57 for a sum of Rs.. 100/- executed by the 1st defendant, the 2nd defendant being the subsequent purchaser of the same property for Rs. 7,000/-. The 1st defendant denied Having executed the contract of sale. The plaintiff took photographic copies of the suit document with the permission of the Court and also of the admitted signatures of the 1st defendant and sent them to Mr. Dixit. the Government Examiner of Questioned documents of Nagpur for his-opinion. He gave his opinion that the document was genuine. Thereupon I. A. 406/61 was filed for examining Mr. Dixit on commission at Nagpur. This application was dismissed by the trial Court and feeling aggrieved by this order, the plaintiff has come up by way of revision.
2. The grounds on which the application was rejected were :
(1) that the defendants will be put to enormous expense if they should go to Nagpur; and
(2) that they may have to requisition the services of another expert for cross-examining Mr. Dixit.
The Dt. Munsif was of the opinion that it is therefore desirable that he should himself record his evidence and appreciate the evidence properly, though the Expert is admittedly living beyond 200 miles from the Court-house.
3. Sri Gopalarao, the learned Counsel for the petitioner assails the correctness of this order on the ground that it is opposed to the Statutory provisions, and that the trial Court acted with material irregularity and illegality in the exercise of its jurisdiction.
The relevant provisions of the Code of Civil Procedure nay first be referred to, in order to appreciate the contentions of the learned counsel for the petitioner. Order 16, Rule 19 C. P. C. enacts omitting unnecessary words, that any one shall be ordered to attend in person to give evidence unless he resides at a place less than 209 miles distance from the Court-house. Order 26, Rule 1 empowers the Court to issue a commission for the examination on interrogatories or otherwise of any person resident within its local limits who is exempted under the Code from attending the Court, or who is unable to attend it from sickness or infirmity. Rule 4 of the order empowers the Court to issue commission for the examination of:
(a) any person resident beyond the local limits of its jurisdiction.
.................. (c) any person in the service of the Government who cannot in the opinion of the Court, attend without detriment to the public service.
Such commission may be issued to any Court, not being a High Court, within whose local limits such person resides, or to any pleader or other person whom the Court issuing the commission may appoint. Rule 5 empowers the Court to which application is made for the issue of a letter of request.
4. The scope of these rules was considered in a number of cases by the Madras and other High Courts. In Sittamma v. Subrayya, 21 Mad LJ 889 Abdur Rahim and Sundara lyer, JJ. laid down that a party was entitled as of right to the issue of a commission to examine a witness beyond the prescribed distance, apart from the question whether he would be ultimately benefited by it. The order of the learned Dist. Munsif, who refused to issue a commission under those circumstances was set aside.
In Jagannatha Sastry v. Sarathambal Ammal, 44 Mad LJ 202: ILR 46 Mad 574: (AIR 1923 Mad 321), Wallace J., considered the scope of Order 16 Rule 19(b) and Order 26 Rules 1 and 4 and held in the case of a witness not under the control of the party asking for a commission, who resides beyond the limits fixed under Order 16 Rule 19(b) a commission should issue as a matter of right, unless the court is satisfied that the party is merely abusing the Court's authority to issue process. The learned Judge also held that it was not for the Court to decide whether the party applying for the commission will be benefited or not by the evidence of the witness proposed to be examined on commission, and that it is a matter entirely for the party supplying for the issue of commission. The learned Judge held that the word 'may' in Order 26 Rules 1 and 4 means 'is given authority to' and that the Court has no discretion to refuse a commission in cases falling under those Rules.
In that case, the application was for the issue of commission for the examination of two witnesses who lived more than 200 miles from the Court-house, and who could not be compelled to attend by ordinary process. The contention before the High Court was that it was entirely a matter for the discretion of the Court, and that the trial Judge was correct in refusing the application. The learned Judge after citing the practice of English Courts and the decisions of the Calcutta and the Madras High Courts, followed 21 Mad LJ 389 and Veerabhadran Chetty v. Natraja Desikar, ILR 28 Mad 28 and disapproved the decision of a single Judge in Chinnu v. Sambanda Moorthi, 23 Ind Cas 522 : (AIR 1914 Mad 203) that the matter is one of judicial discretion. It may also be noted that the learned Judge (Wallace, S.) held that one of the witnesses sought to be examined on commission, who is the father of the applicant, is not a person under his control.
In Subbaraya Padayachi v. Kozhandaivel Udayar, AIR 1949 Mad 496, Subbarao, J. (as he then was), held that a party to a suit has a right to ask for the issue of a commission to examine a witness who resides beyond the limits fixed under Order 16, Rule 19(b) unless the Court is satisfied that a party is merely abusing its authority to issue process, and that it is not for the court to decide whether the party will be benefited by the evidence of that witness or not, and that the same principles will apply even in the case of an expert witness.
In that case, the application was filed in the trial Court for the issue of a commission to examine Mr. Dixit, Government Examiner of Questioned Documents, Central Provinces and Berar, who, it may be mentioned, incidentally is also the witness sought to be examined on commission in the instant case.
5. The District Munsif dismissed the application on the ground that both under the Rules as well as a matter of expediency, it was desirable that the suit document should be examined by the Examiner of the Central Government. The learned Judge (Subba Rao, J.) followed the decisions in 21 Mad LJ 889 and ILR 28 Mad 38 and laid down the principle extracted above. The observation of Bell J., in Pataniappa Chettiar v. Narayanan Chettiar, 1346 I Mad LJ 179 : (AIR 1946 Mad 331) that
'In my opinion it is a matter of discretion for the Court in the circumstances of each particular case to issue a commission'
was held by Subba Rao, J., as he then was, mere obiter, as the finding in that case was that the application was an abuse of the process of Court. The learned Judge also observed that the examination of an expert having been conceded by both parties to be necessary for the case, the fact that the party selected one of the two experts as his witness, cannot be said to be an abuse of the process at Court to disentitle him to the issue of a commission.
6. In another case Boorayya v. Ramakoti Sastri, AIR 1949 Mad 468, Panchapakesa Aiyar, J. laid down the same principle. In that case, the witness sought to be examined was the vendor of the property to the plaintiff, who made the application, and was residing beyond 200 miles from the court-house. The application was resisted on the ground that the witness stood on no better footing than the plaintiff and that the commission should be refused. The learned Judge rejected the contention in the following words:
'The law does not recognise 'equivalents to the plaintiffs' and 'equivalents to the defendants' and the rules must be strictly construed. Any witness, however important is entitled to ask to be examined on commission if he lives outside its jurisdiction in a place more than 200 miles from the court-house, as here, and the Court in which the application for commission is filed sees no fraud or mala fides in such an application.'
This case brings out very prominently the distinction between the right of a party, whether he be plaintiff or defendant, to get himself examined on commission, and the right of the party to have his witness examined on commission, and under Order 16, Rule 19, C. P. C. a Court cannot compel a witness living beyond 200 miles to attend Court, and a commission should be issued, unless the application is actuated by fraud or mala fides.
7. The effect of Order 16, Rule 19 and Order 26, Rule 4, C. P. C. in the light of the foregoing decisions may be summarised thus:
8. In the case of parties, the Court has a discretion in issuing a commission, and the discretion will be very strictly exercised in the case of the plaintiff, while in the case of the defendant, it will be more liberally exercised. In either case, it is in the discretion of the Court to consider whether the party should be examined in the presence of the Court or on commission. The fact that the party is residing beyond 200 miles from the court-house does not confer any right to be examined on commission. The position with regard to the witnesses is, however, different. A witness residing at a distance of more than 200 miles has a right to be examined on commission, whether his evidence is of any Benefit to the party examining him or not, subject to two conditions:
(1) he is not within the control of the party making the application;
(2) the application is not an abuse of the process of the Court or actuated by mala fides or fraud.
9. In the instant case, it is admitted that Mr. Dixit is living beyond 200 miles from the court-house. It has not been averred, much less established, that it is an abuse of the process of the Court. It is not also disputed that the witness is not within the control of the party making the application. I may also mention that the case falls under Order 25, Rule 4 (1) (c) inasmuch as Mr. Dixit is admitted to be in the service of the Madhya Pradesh Government.
10. I am, therefore, of the opinion that the plaintiff is entitled to ask for the issue of a commission for examining Mr. Dixit, and the reasons given by the Trial Court do not warrant its refusal.
11. Sri M. B. Rama Sarma, however, contends that the order of the Court below is correct, relying on the following authorities. In In Re, Srinivasalu Naicker (S) : AIR1955Mad179 , Ramaswami J., held that in a plain case of forgery where the evidence of the Expert would naturally be supplementary, Courts probably would and should exercise their discretion in favour of the Hand-writing Expert being examined on commission, but where the Court thinks owing to the nature of the forgery and the testimony which would be forthcoming, that the Expert should appear before it, and it should be able to intelligently follow the testimony and subject it to further test in the light of the evidence given before Court, and it would also incidentally watch the demeanour of the witness to satisfy itself that the testimony was being given by a competent and qualified person who knows what he is speaking about, it cannot be said that it is as unreasonable exercise of its jurisdiction to refuse a com-mission.
It was further held that the principle is that in Courts of law no testimony should normally be accepted as having any serious probative value unless it is subjected to cross-examination and the Court itself has an opportunity of observing the demeanour of the witnesses.
In that case, the learned Subordinate Judge rejected an application for examining on commission a Hand-writing Expert, who had already given his opinion to the party making the application. That order was upheld by Ramaswamy J. laying clown the above principle. The learned Judge, also observed that in the case of a Thumb Impression Expert, where the evidence has to be assessed mechanically by evaluating the points of resemblance and the points Of difference and come to a conclusion, the case would be different and that no hard and fast rule could be laid down in regard to the issue of commission for calligraphic Expert and the learned Judge also emphasised the importance of observing the demeanour of witnesses. The learned Judge did not consider the scope of Order 16, Rule 19 and Order 26, Rule 4, nor considered the effect of the decisions in 21 Mad LJ 889, 44 Mad LJ 202: ILR 46 Mad 574: (AIR 1923 Mad 321) and AIR 1949 Mad 496. I cannot therefore consider it as an authority on the question arising for consideration.
12. The next case relied on is P. R. Bizani v. Hans Zucker, : AIR1960AP459 . In that case an application for the issue of a commission to examine the defendant and also his witnesses was refused by the District Judge, Adilabad. A revision was preferred against that order to this Court, and Munikanniah, J. held that the order, to the extent that it refused a commission for the examination of the defendant was unassailable. Regarding the issue of a commission for the examination of witnesses, the learned Judge observed that the request could be considered later on, after the examination of the defendant and two other witnesses who were permitted to be examined on commission.
In that case, the learned Judge observed that the decision of the Division Bench in 21 Mad LJ 889, is of little consequence on the ground that it considered only the question whether in issuing the commission, the benefit to be conferred upon a party need concern the Court. The learned Judge seemed to follow the judgment of Bell, J., who dissented from the view taken in 44 Mad LJ 202 : (AIR 1923 Mad 321) [Judgment of Wallace, J.) As already pointed out, Subbarao, J. (as he then was) laid down that if the requirements of Order 16, Rule 19 are satisfied, there is a 'prima facie' right to ask for the issue of a commission. Munikannaiah J. however was under the impression that Subba Rao, J., (as he then was) considered the observations in 44 Mad L J 202 : (AIR 1923 Mad 321), to be obiter. This is incorrect. Subbarao, J. in AIR 1949 Mad 496 after citing 21 Mad L J 389, observed as follows:
'The same principle is followed and applied in ILR 46 Mad 574 : (AIR 1923 Mad 321), Wallace, J. after consideringthe various decisions cited before him.
x x x x xx x x x x With great respect, I agree with the observation.'
Bell J. in 1946-1 Mad LJ 179 : (AIR 1946 Mad 331) referred to 44 Mad LJ 202 : (AIR 1923 Mad 321) and observed at page 180 (of Mad LJ) : (at p. 332 of AIR) thus:
'in my opinion it is a matter of discretion for the Court in the circumstances of each particular case.'
Subbarao, J. observed:
'That observation in that case is a mere obiter as the finding in that case was that the particular application was an abuse of the process of Court.'
Munikannaiah, J. mistakenly thought that Subba Rao, J. (as be a then was) characterised the observations in 44 Mad LJ 202 : (AIR 1923 Mad 321), as obiter, while in fact the reference of Subbarao was to the decision in (1946) 1 Mad LJ 179 : (AIR 1946 Mad 331). The decision in 21 filed LJ 889; 44 Mad LJ 202 : (AIR 1923 Mad 321) and AlR 1949 Mad 495, were no doubt referred to by the learned Judge also did not keep distinct the position of a party, and a witness as regards his being examined on commission, though the learned Judge noticed this difference at page 460, column 2 thus :
'Having regard therefore to this state of authorities which mostly concerned witnesses for a party, the position of a defendant who applies for his examination on commission, in my view, calls for stricter scrutiny and the discretion exercisable by a Court must be on quite justifiable grounds. The order for the issue of a commission cannot be easily had in such a case if the party's conduct during the pendency of the suit has not been above board. Applying this test to the present case, I am of the view that the order passed by the learned District Judge in so far as he refused to issue a commission for the examination of the defendant, is unassailable,'
13. The decision in : AIR1960AP459 , is, therefore, an authority only for the position that the party-defendant, is not entitled to claim to be examined on commission, except on very strong grounds. That judgment cannot be considered as an authority in the case of a witness residing at a distance of more than 200 miles, and does not advance the case of the respondent.
14. Mr. Rama Sarma also relied on a decision in Jayashanker Mills (Barsi) Ltd. v. Hajee Ebrahim, (1962) 1 Andh W R 218 : (AIR 1962 Andh Pra 435) of a Division Bench of this Court. In that case, Satyanarayana Raju and Kumarayya, JJ., considered the scope of Order 16, Rule 19 and Order 26, 'Rule 4, C. P. C. very exhaustively, and the head-note correctly brings out the ratio in the case.
'A litigant enjoys a right to have a witness brought before the Court for purposes of examination in accordance with the normal procedure. In particular cases a departure from this normal procedure becomes inevitable or expedient in the interests of justice. The Civil Procedure Code, therefore, provides for cases where such departure is permissible. These provisions are contained in Rules 9 and 21 of Order 16 and also Rules 1, 4 and 5 of Order 26. The first mentioned rule applies to persons who are ordered to attend in person to give evidence. Rule 21 covers cases where the persons so required are parties to the suit itself. Neither of these provisions has any application to a case where a party to the suit, on his own motion, wants to be examined on commission as a witness. In that case, resort may be had only to the provisions of Rule 1 or Rule 4 of Order 26, Civil Procedure Code. Benefit of these provisions may be claimed if necessary circumstances mentioned therein do exist. But even there, that is not a matter of right for the party but is left to the discretion of the Court, which, of course, has to be exercised on sound principles of justice and equity.
The expression 'may' used in Rules 1 and 4 of Order 26, Civil Procedure Code, has been interpreted in some decisions as virtually 'must', but they are cases mainly concerned with Order 16, Rule 19, Civil Procedure Code. Therefore, a defendant seeking to examine himself on commission can not claim any right under the clear terms of the provision. The matter is exclusively within the province of Order 26 which leaves it to the discretion of the Court. As such, if the application is not bona fide or is likely to result in on abuse of process of the Court, such an application can be rejected.'
It may be mentioned that the learned Judges referred to 44 Mad LJ 202 : (AIR 1923 Mad 321) and distinguished that case on the ground that that was a case of witness sought to be examined on commission, and not of a defendant as in the case of witnesses, such statutory privileges enure to their benefit under Order 16, Rule 19, provided they reside beyond the limits fixed under Order 16, Rule 19 and the Court is satisfied that the party is not abusing its authority to issue the process. The learned Judges observed at page 221 (of Andh W R) : (at p. 438 of AIR):
'That shows that even in cases where there is a statutory right it is open to the Court to refuse the same if the witness is under the control of the party and the application is not bona fide.'
They made it clear that according to 44 Mad LJ 202 : (AIR 1923 Mad 321), the right given under Order 16, Rule 19 C. P. C. is a statutory right subject to the limitations mentioned above. They also cited the decisions of Subbarao, J., (as he then was) in AIR 1949 Mad 496, with approval but distinguished that case on the ground that that was also a case of witness other than the party. This decision far from helping the respondent, supports the petitioner's case.
15. Mr. Rama Sarma also relied on a Bench decision of the Orissa High Court in Union of India v. M/s. Natabarlal, AIR 1956 Orissa 65, which laid down that the privilege of permitting a party to examine himself or his witnesses on commission is a matter which rests on the judicial discretion of the Court trying a suit, and there is also a distinction between a plaintiff asking to be examined on commission and a defendant making such a request. According to the learned Judges, what is essential is that the Court before allowing evidence to be taken on commission has to satisfy itself that the application has been made in good faith and not for the purpose of delay and embarrassment. As there are precedents of the Madras High Court and of this Court binding on me, I cannot follow this decision, taking a contrary view.
16. I am, therefore, of the opinion that the order of the District Munsif is clearly unsustainable. Ha has exercised his jurisdiction erroneously in refusing the commission applied for. The revision petition, therefore succeeds. I. A. No. 406 of 1961 is hereby allowed, and the District Munsif is directed to appoint a Commissioner as prayed for. The petitioner in this Court will have his costs from the respondent. Costs of the Interlocutory Application will abide the result of the suit.