Shri Kirpa Ram Bajaj, who admittedly resides in New Delhi, was examined on commission at the instance of the petitioner. The commission has been duly executed & returned to this Court together with evidence taken under it, but Mr. Sanyal for the petitioner states that be does not propose to read it: & he objects to Mr. Bhargava, who appears for the company, doing so. He contends that evidence taken on commission must be tendered as evidence before it becomes evidence in a suit, & that it can be tendered only by the party at whose instance the commission was issued. Mr. Bhargava argues that in a case such as the present, in which it is not in dispute that the witness is beyond the jurisdiction of the Court, Rule 8 of Order 26, Civil P. C. has no application, & that accordingly evidence taken on commission forms part of the record of the suit under the preceding Rule 7 & as such can be relied upon by either party.
2. Now Rule 7 of Order 26 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 issued, & that the commission & the return thereto & the evidence shall subject to the provisions of Rule 8, form part of the record of the suit, & then Rule 8 says that evidence taken under a commission shall not be made as evidence in the suit without the consent of the party against whom the same is offered, unless certain conditions are first fulfilled.
3. There is no decision of this Court which is in point. Upon a consideration of the two rules it appears to me that a distinction is made between evidence recorded on commission forming part of the record of the suit--for which provision is made in Rule 7--& such evidence, although farming part of the record, constituting evidence in the suit. Had it been the intention of the legislature, as argued by Mr. Bhargava, that evidence taken on commission should under Rule 7 be evidence in the suit, then I think that would have been made clear by the use of words such as appear in Sub-rule (2) of Rule 10 of the same Order, where it is expressly provided that the report of Commissioner directed to make a local investigation, & the evidence taken by him, 'shall be evidence in the suit & form part of the record.' I am aware that a different view was taken by the Calcutta High Court in Dhanu Ram Matho v. Murli Matho, 36 Cal. 566, but considerable doubt has been cast upon the correctness of that decision in the later case of Krists Kishore Base v. Pancharam Maity, 47 C. L. J. 467. Further, difficulties in accepting the view that because evidence taken on commission is (or may be) part of the record it, therefore, automatically becomes evidence in the case, were pointed out by Chagla J., (as he then was) in Vithaldas v. Lakhmidas, L. L. R. 1942 Bom. 680.
4. I am, therefore, unable to agree with the extreme view put forward on behalf of the company. But Mr. Bhargava then contends that if the petitioner is not willing to tender the evidence taken on commission, he is entitled to do so. Now Rule 8 does not say by whom the evidence taken on commission is to be tendered : what it says is that such evidence shall not be 'read in evidence' in the suit without the consent of the party against whom it is offered unless certain conditions are fulfilled. In this case the party against whom the evidence is proposed to be offered is the petitioner & the question of his consent does not arise as it is admitted that Shri Kirpa Bam Bajaj is beyond the jurisdiction of this Court. In my opinion his evidence can be read as evidence in the case by either party, & this also is the view which was taken not only in the Bombay case of Vithaldas Damodar v. Lakhmidas Harjiwan to which I have already referred, but also finds some support from the earlier Calcutta decision of Kusum Kumari v. Satya Ranjan Das, 30 Cal. 999.
5. I, therefore, allow Mr. Bhargava to tender the evidence taken on commission of Shri Kirpa Ram Bajaj.