1. This revision petition is against the order of the District Judge, Adilabad, refusing to issue a commission to examine the defendant or his witnesses. In his order, the learned District Judge has adverted to the vexation caused by the defendant in resiling from his attitude not to cross-examine and then accusing the Court and afterwards also not exercising the right when allowed to do so. It is also pointed out that on behalf of the defendant no attempt has been made to admit or deny the documents filed by the other side and the learned District Judge nas been of the opinion that the defendant has been employing dilatory tactics. Having regard to this observation and also because where the suit is based upon the oral loan, the examination of the defendant in Court so as to enable his demeanour to be observed cannot but be considered most essential. The learned District Judge has pointed out that the defendant has not produced any medical certificates and the application is not based on grounds of illness or inability to travel the distance from Calcutta to Adilabad. In the view the learned District Judge has taken about the conduct of the defendant and of the necessity for the defendant to appear in person in court, it cannot be said that the order of the learned District Judge, in so far as the defendant is concerned, calls for interference.
2. Mr. Shrivastava, however contended relying upon Rule 19 or Order XVI C. P. C. that the Court trying the suit is precluded from issuing an order to any one to attend in person to give evidence unless he resides within the local limits of the Court's ordinary original jurisdiction and that therefore it is obligatory that a commission shall be issued even for the examination of the defendant. The learned advocate relied upon the decision ot Wallace J. in Jagannatha Sastry v. Sarathambal Ammal, AIR 1923 Mad 321: ILR 46 Mad 574 where the learned Judge with reference to Rule 19 of Order XVI C. P. C. stated:
'The balance of authority is in favour of the view that, (1) 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 16, Rule 19(b) C. P. C., a commission should issue as a matter of right, unless the Court is satisfiedthat 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.'' Further cm, while on the comparison of the language employed in Rule 4 of Order XXVI C. P. C., with Rule 1 of the same Order, the learned Judge concluded that the word 'may' in 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', and that therefore '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.' The decision, however, seeks to follow that of a Division Bench in Sitamma v. Subraya, 21 Mad LJ 889: 12 Ind Cas 74; but to my mind, this decision is of little consequence if this context in that the Division Bench appears to have been considering only the question whether in issuing the Commission the benefit to be conferred upon a party need concern the Court. After the decision of Wallace, J., it looked as though there was no option left with any trial Court to refuse to issue a commission if the person to be examined was not within the limits of the Court's ordinary original jurisdiction or when the conditions specified in Rule 4 of Order XXVI C. P. C. are satisfied. That Rule 4 in so far as it is relevant, is in the following terms:
4(1) 'Any court may in any suit issue a commission for the examination of
(a) xx xx xx(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and
(c) any person in the service of the Government who cannot, in the opinion of the Court, attend without detriment to the public service.' Though to both Rule 19 of Order XVI and Rule 4 of Order XXVI C. P. C., the first Clause viz., a person being outside the limits of its jurisdiction is common, there is indeed a differentiation in that the word 'shall' is employed in one and 'may' in the other viz., Rule 19 of Order XVI and Rule 4 of Order XXVI C. P. C. respectively. This indeed seems to have been responsible also for the further examination of this question by single Judges of the Madras High Court. In Mahomed Ibrahim v. Allapichai Rowther, AIR 1937 Mad 24, Horwill, J. felt that there need be no distinction even in the case of a defendant who removes himself away from the jurisdiction of the Court and a commission should issue for the examination of a defendant if he happens to be away from the jurisdiction of the Court.
In Palaniappa Chettiar v. Narayanan Chettiar, AIR 1946 Mad 331 Bell J. dissented from the view taken in AIR 1923 Mad 321: ILR 46 Mad 574 and adumbrated that the requisite for issuing a commission is the satisfaction of the test which consists in the applicant to show that, unless a commission is issued to take the evidence of the person desired, it will be impossible to place the necessary and relevant facts before the Court in support of his case, but ruled that a commission cannot be issued as a matter of right. Later on in Subbaraya Padayachi v. Kozhandaivel Udayar, AIR 1949 Mad 496, Subba Rao, J. (as he then was) qualified the right of a party to have a commission issued as available only when a party is not abusing its authority to issue process. The learned Judge also pointed out that what has been observed in AIR 1923 Mad 321: ILR 46 Mad 574 is a mere obiter 'as the finding in that case was that theparticular application was an abuse of the process of Court.'
3. Thus, a review of the authorities to this extent establishes that there can be no insistence as of right by any party to have a commission issued for the examination of any one merely because the party is outside the jurisdiction unless and until the Court is also satisfied that the real requisite for the issue of the commission is the compelling necessity and that it should not be made a tool for an abuse of the process. So it follows that any discretion which the Court can exercise both under Order XVI Rule 19 or Order XXVI Rule 4 C. P. C. has to depend upon its judicial exercise having regard to all the facts which the trial Judge is aware or possessed of. It appears to me that such is the accepted view, and this is strengthened even by the decisions of Pan-chapakesa Ayyar, J. in two of his pronouncements reported in Re; Subramanian Chettiar. : AIR1955Mad210 and Mohammad Zackria v. Abdul Karaim Rowther, 1956-2 Mad LJ 371; for while in the earlier case the learned Judge would not exercise the powers of revision, in the latter he did. 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 ccmmission for the examination of the defendant, is unassailable.
4. As the order concerns also with the other five witnesses for the defendant, it may be con-venient to deal with each witness, and to examine whether the above tests in exercising the discretion vested in the Court have been satisfied. It may, at the outset, he pointed out that Mr. Srivastava has not much to urge in respect of the witness. Ram Bali Singh, and therefore no further reason-ing need be employed to have to find that the order of the lower court should stand in regard. to this witness. As for Lakhani, who is the managing director of Maheswar Mining and Trading Co., Ltd., at Nagpur, in which the moneys of his company, according to the defendant's averment, for which the suit was laid have been invested, it is contended on behalf of the plaintiff by Mr. Ataur Rahman that his evidence is very material and the observation of his demeanour is essential, if really the truth of the case of the plaintiff has to be-brought out.
The learned District Judge has observed that this witness as could be judged from the pleadings or the indications given, 'is involved in this case by the defendant in a manner that the only way out is to record his deposition in this court only/' This observation cannot be merely said to be an assertion of an impression without substance but must be taken to be an opinion of the learned Tudge which he is entitled to form in regard to the witnesses even at this stage. It could not therefore be easily brushed aside. Such being the case with regard to this witness, I do not think the order of the learned District Judge refusing to issue a commission to examine Lakshni, could be interfered with.
5. The other three witnesses to whom commission is also prayed to be issued for examination are (1) Shyam Sunder Deshpande employed in Maheswar Mining and Trading Co., Nagpur, (2)Manager, Mount Hotel, Civil Lines, Nagpur and (3) Satyanarayana Kalani who is said to reside in Nemauch in Central India. Though in the case of these three witnesses also, the learned District judge is of the opinion that their demeanour should be observed and therefore they should he present personally in the court, it is possible to take the view that it is too early to be so definite about these witnesses. To my mind, it looks as though the production of any documents by the manager, Mount Hotel could be done by whosoever be the manager when the summons are taken out, and therefore the insistence upon the attendance in court of a particular Manager is not altogether justified.
For similar or other reasons it may be that the examination of the other two witnesses on commission may be in the interests of saving expenses to the parties or otherwise expediting the hearing of the suit even. But the appropriate time to consider that question would be after the examination of the defendant and his main witness Lakhani. In this view, I am unable to uphold the order of the learned District Judge that the commission should be refused in regard to the examination of these three witnesses and as such that request could be considered later on after the examination of the defendant, Lakhani and Ram Ball Singh or after their evidence is dispensed with--if it so happens or as the case may be.
6. In the result, the order of the learnedDistrict Judge refusing to issue a commission toexamine the defendant, Lakhani and Ram BaliSingh is upheld. The District Court will be atliberty to consider the issue of the commission tothe other witnesses, if any application is madethereafter at the appropriate time as mentionedabove. This revision petition is therefore dismissed but without costs.