R.N. Misra, J.
1. Defendants 1. 2 and 3 are before this Court in an application under Section 115 of the Code of Civil Procedure.
2. In Title Suit No. 85 of 1968 of the court of the learned Subordinate Judge, Balasore. an order was obtained on 31-8-1970 that plaintiff No. 1 may be examined before a commissioner on the ground that she was a very old lady unable to attend court at the time of trial. Several orders were passed by the court from time to time in the matter of her examination on Commission. Ultimately on 19-4-1971 the commissioner submitted his report along with the deposition of plaintiff No. 1. By order No. 60 dated 13-5-1971, the learned trial Judge directed:--
'Heard. The suit has already been ready for hearing. This matter arises out of examination of witness on commission and hence it is desirable that the matter is to be disposed of along with main hearing of the suit......'
On 9-9-1971, defendant No. 1 applied to the learned trial judge that orders may be passed in the matter of examination of the plaintiff on commission which had been deferred. After hearing parties, the learned trial judge gave the following direction.
'.....It is well known that evidence taken on commission does not ipso facto become evidence in a case and it has to be offered by the party who has examined the witness. Plaintiff's lawyer submits' that he does not tender the evidence in court. D. 1's lawyer thereupon submits that he tenders the evidence already recorded by the commissioner to be read as evidence in the suit. Whether defendant No. 1 is entitled to do so or not will be considered at the time of arguments in the suit to be heard after close of oral evidence to be adduced in court. For the present, however, plaintiff No. 1 will be examined afresh in court. In case it is found that defendant No. 1 is entitled to tender the evidence recorded by the commissioner, then the same will be read as evidence in the suit. With these observations, I direct that trial do commence immediately with fresh examination of plaintiff No. 1 in court'.
This order of the trial judge is assailed in the present application.
3. There is substantial force in the contention of Mr. Jagdeb Ray that such a question should not have been left to be decided at the time of argument. In case the plaintiff's evidence recorded before the commissioner was to be received as evidence in the suit, there was hardly scope to examine the plaintiff over again and thereby duplicate the work. If the evidence was not to be utilised, certainly the plaintiff was to have herself examined in court. Deferring the matter has also another disadvantage. The defendants should have been in a position to know as to what use they could put the previous statement of the plaintiff before the commissioner during her further examination in court. As such these matters should not have been left to be decided at the stage of argument and evidence should not have been permitted to be recorded until the parties were told finally as to what was the position of the evidence recorded by the commissioner. The jurisdiction vested in the learned trial judge has not been properly exercised and by deferring to dispose of the matter which arose for decision, the parties are likely to be prejudiced.
4. Since the learned trial judge has not decided the matter on merits, I do not propose to reach a final decision on the question and must leave it to the learned trial judge, but I hold that that question must be decided right now before evidence is taken.
5. There is no dispute that the evidence recorded by the commissioner of plaintiff No. 1 goes against her own interest. That is why plaintiff No. 1 has appeared in court and has volunteered to examine herself again. Her evidence before the commissioner was recorded on two dates. She has signed her own deposition at the end of the first-stage examination, but the evidence recorded on the second date has not been signed by her. Her counsel Mr. Sinha states that the witness was deposing in Urdu and parties did not agree upon the English rendering of her statements. Therefore, she did not accept the recording of her deposition by the commissioner to he true and accordingly she has not signed the second day's deposition.
6. There is no dispute that the evidence taken by the commissioner does not become evidence in the suit until the requirements of Rule 8 of Order 26 of the Code of Civil Procedure are complied with. By operation of Rule 7 the evidence taken by the commissioner forms part of the record of the suit. But it is made subject to the compliance of Rule 8 in order to become evidence in the suit. Rule 1 of Order 26 provides that a court may issue a commission for the examination of any person resident within the local limits of its jurisdiction who is exempted under the Code from attending the court or who is from sickness or infirmity unable to attend the court. Rule 4 deals with three other situations when the court may issue a commission for examination of persons as witnesses. Those eventualities are:--
(a) If the person to be examined as a witness resides beyond the local limits of its jurisdiction;
(b) If such person is about to leave the local limits of the court before the date on which he is required to be examined in court; and
(c) If such person happens to be a Government servant who cannot, in the opinion of the court, attend without detriment to the public service.
Rule 8 requires 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 unless:--
(a) the person who gave the evidence is beyond the jurisdiction of the court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in court, or is a person in the service of the Government who cannot, in the opinion of the court, attend without detriment to the public service, or
(b) the court in its discretion dispenses with the proof of any of the circumstances mentioned in Clause (a), and authorises the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.
The circumstances indicated in Clause (a) In fact cover the field indicated under Rules 1 and 4 of Order 26. The ordinary Rule is that the evidence shall be recorded by the court which adjudicates the dispute. But under certain circumstances, as a delegatee of the court, a commissioner is entitled to record evidence. Therefore, the law seems to have been that the evidence recorded under a commission shall not be read in evidence until the party against whom such evidence is offered to be so read consents to such reading, or any of the eventualities contemplated in Clause (a) exists in which case consent would 110 more be necessary. In the present case, plaintiff No. 1 has offered to be examined in court and it is therefore, contended that Clause (a) cannot apply and since plaintiff No. 1 does not offer to read her deposition under the commission to be read as evidence, there is no scope for reading of such evidence as evidence in the suit.
7. As I have already said, the final decision in this matter is being left to the learned trial judge. Therefore, normally I would not have indicated anything further. But the learned trial judge has raised a lot of doubts in his own mind on the point and the law to be applicable appears to be not in a certain state. Therefore, I have examined the question and would indicate the guideline.
8. Learned counsel for the parties have agreed to the position that evidence can be read not only by the party who examined a witness under commission, but also by the adversary. This position seems to have been settled. Chagla, J. (as his Lordship then was) in the case of Vithaldas Damodar v. Lakhmidas Harjiwan. AIR 1942 Bom 266. said:--
'.....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. If the party examining the witness does not wish to tender the evidence, the opposite party can be allowed to tender the same'.
In reaching this conclusion, his Lordship relied upon two Calcutta decisions.
The next point of dispute which requires to be resolved is as to whether in a case where Clause (a) of Rule 8 is not complied with, the adversary can ask the court to read the evidence of a witness taken under commission. Mr. Sinha for the opposite parties contends that there is none. I am not prepared to accept such a contention. Sub-rule (b) of Rule 8 has been provided to meet such eventuality. There may be cases where evidence has been recorded under a com-mission and the party who availed of the opportunity, funding such evidence against its own interest, may attempt to stand in the way of such evidence being received as evidence in the suit. Should that be permitted to be done? Lot of discretion vests in the court by sub-Rule (b) and, therefore, it authorises that the court in its discretion may dispense with the proof of any of the circumstances mentioned in Clause (a) and authorise the evidence of any person being read as evidence in the suit notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of the reading of the same. In the present case, plaintiff No. 1 had been permitted to be examined under commission on account of sickness or infirmity to attend the court personally. Now she is offered to be examined in court. That is one of the eventualities under Sub-rule (a). But Sub-rule (b) in its own terms authorises the court in its discretion to allow such evidence to be read as evidence in the suit Sub-rule (a) and Sub-rule (b) cover different fields and in-, disputably Sub-rule (b) covers the field not covered by Sub-rule (a). An analysis of Rule 8 may be made in the following manner:--
The Rule lays down 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 unless (a) the person who gave the evidence is-
(i) beyond the jurisdiction of the court; or
(ii) dead; or
(iii) unable from sickness or infirmity to attend to be personally examined or
(iv) exempted from personal appearance in court; or
(v) is a person in the service of Government, who cannot, in the opinion of the court, attend without detriment to the public service; or
(b) the court in its discretion-
(i) dispenses with the proof of any of the circumstances mentioned in Cl. (a); and
(ii) authorises the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.
A party who wishes to rely on evidence taken on commission must either--(a) obtain the consent of the party against whom he offers it to its being read as evidence in the suit; or (b) have it read as evidence in the suit by complying with one of the conditions laid down in Clause (a) of this rule; or (c) persuade the court in its discretion to dispense with any of the circumstances mentioned in Clause (a) of the Rule and authorise the evidence being read as evidence in the suit notwithstanding the want of proof to the existence of such circumstances. Each of the alternatives involve a request to have the evidence read as evidence in the suit.
9. Even if the evidence of the plaintiff on commission was not read as evidence in the suit, it becomes relevant to consider as to whether such evidence can be taken to be a previous statement of the witness for the purposes of Section 145 of the Evidence Act. Mr. Sinha seriously disputes the availability of such statement even for that purpose and places reliance on a Bench decision of the Calcutta High Court in the case of Mohitosh Ghose v. Molin Behari Dutt AIR 1937 Cal 163. I am not in a position to accept such a contention. It certainly must constitute previous statement of the witness and would, therefore, be available for the purposes of Section 145 of the Evidence Act.
10. As I have reached the conclusion that the learned trial judge in deferring the decision on the question omitted to exercise jurisdiction vested in him in accordance with law, and the postponement of the decision is likely to prejudice the parties at the trial, I would allow the revision, vacate the order and call upon him to dispose of the matter before he starts recording evidence in the suit. I have not the slightest intention to put fetters on the discretion of the learned trial Judge and the sole purpose in entering into a discussion on the dispute was to provide material for his guidance in the matter of exercise of discretion.
11. Parties shall bear their own costs.