T.V.R. Tatachari, J.
(1) This Civil Revision petition was filed by Thakar Singh and antoher against the order of Shri V. S. Aggarwal, Subordinate Judge, 1st Class, Delhi, dated 23rd August, 1968, in an application under Order 26, Rule 4 of the Code of Civil Procedure in suit No 82 of 1963, on his file.
(2) The respondent herein (plaintiff), M/s. Karriers Finance, filed the above mentioned suit against the petitioners herein on 15th February, 1967. An ex parte decree was passed against the petitioners herein on 27th April, 1967. On an application by the petitioners (defendant), the ex porte decree was set aside on 21st December, 1967 on the condition of the petitioners (defendants) paying certain costs, and the suit was adjourned to 8th January, 1968 for the payment of the aforesaid costs. The costs were duly paid by the petitioners (defendants) and the petitioners filed theit written statement on 23rd January, 1968. Issues were framed on 24th February, 1968. The case was posted on 18th April. 1968 for recording the evidence of btoh the parties. On that date, the respondant (plaintiff) examined one of his witnesses, and the case was adjourned to 6th June, 1968 for recording the remaining evidence of the respondent (plaintiff) and the evidence of the petitioners (defendants). On 6th June, 1968, the respondent (plaintiff) adduced all his evidence and closed his evidence. As the petitioners (defendants) did nto summon their witnesses for that date, the Court adjourned the case to 4th September, 1968 on the condition of payment of costs by the petitioners (defendants) to the respondent (plaintiff). The costs were duly paid. The Court was closed for summer vacation on 14th June, 1968, and it was re-opened on 15th July, 1968.
(3) On 6th August. 1968, the petitioners (defendants) filed an application under Order 26, Rule 4 read with Order 16, Rule 19 of the Code of Civil Procedure, praying for the examination of seven witnesses of the petitioners (defendants) at Srinagar, Kashmir, on commission by interrogatories, as the said witnesses reside in Srinagar, which is outside the jurisdiction of the trial Court and beyond 200 miles, and could nto, thereforee, be summoned. The application was opposed by the respondent (plaintiff), who contended that the application was filed only to delay the suit and make the respondent (plaintiff) incur expenses, that the petitioners (defendants) did nto even summon their witness on 6th June, 1968, and that the application filed before the date to which the case was adjourned for evidence was nto in good faith.
(4) The said application was heard by the learned Sub-ordinate Judge, and he passed the order, dated 23rd August, 1968, out of which this revision petition has arisen. The learned Subordinate Judge observed that the prayer for the examination of the witnesses on interrogatories could nto be granted as the suit was filed on 15th February, 1967, and as the procedure of interrogatories is lengthy and usually causes delay. He then observed that. in that event, the learned counsel for the petitioners (defendants) wanted the witnesses to be examined on commission. He came to the conclusion that in the .event of refusal for permission to examine the witnesses on commission, the petitioners (defendants) would have to bring the witnesses at their responsibility and will to bear the expenses of the witnesses and bring them to Delhi, and that, thereforee, for the convenience of the petitioners (defendants) and in order to avoid delay, he considered it would be fit and proper to examine the witnesses on commission. Accordingly, the learned Subordinate Judge appointed Shri K. L. Sawhney, Advocate, as a Commissioner to record the statements of the witnesses at Srinagar, and observed that the petitioners (defendants) will be responsible for production of all the witnesses before the Commissioner on the 13th and 14th of September, 1968. He fixed the fees of the Commissioner at Rs. 500.00 including all expenses and also ordered that the petitioners (defendants) should also pay Rs. 100.00 as the counsel's fee to the respondent (plaintiff). He added that the next date fixed already for evidence was 4th September, 1968, and that the petitioners (defendants) should produce all toher witnesses, if any, on that date.
(5) On 4th September, 1968, the petitioners (defendants) examined one of themselves as a witnesses, and stated to the Court that they had ho toher witnesses except those who were sought to be examined on Commission at Srinagar. On 9th September, 1968, the petitioners defendants) filed the present Civil Revision in this Court along with an application for stay of the proceedings in the trial Court. The revision petition and the application for stay came up for admission before me on 10th September, 1968. One of the grievences in the Civil Revision was that the trial Court, having held that the witnesses at Srinagar will be examined on commission in the circumstances of the case, erred, in appointing an Advocate of Delhi for going all the way to Srinagar to record the evidence of the witnesses, and should have sent a letter of request to the District Judge at Srinagar, within whose jurisdiction the witnesses reside, to appoint an Advocate of Srinagar as Commissioner to examine the witnesses. It was pleaded that the petitioners could nto afford to bear the expenses necessary for sending an Advocate from Delhi to Srinagar, and, thereforee, the order of the trial Court tantamounted to a punishment or penalisation of the petitioners and a denial of justice, and that the learned Subordinate Judge acted illegally and with material irregularity in the exercise of his jurisdiction in appointing an Advocate of Delhi as a Commissioner.
(6) On that date, i.e. 10th September, 1968, in view of the circumstances and the grounds mentioned in the Civil Revision petition, I considersd that it would be just and proper to adjourn the case to 4th October, 1968 to enable the petitioners to move the lower Court for appointment of a Commissioner who resides in Srinagar or any place nearby. I passed an order accordingly. It appears that the petitioners filed an application in the trial Court on 10th September, 1968 itself, praying that instead of deputing an Advocate/Commissioner of Delhi to Srinagar for recording the statements of the winesses of the petitions rs (defendants) on Commission, the District Judge, Srinagar be requested to appoint a Commissioner of Srinagar to record the evidence of the said witnesses at Srinagar. The application came up for hearing before the trial Court on 12th September, 1968, and the Court dismissed the applacation -summarily passing the following order :-
'THE petitioner/defendant has filed the present application for permission to appoint a Local Commissioner at Srinagar through District Judge, Srinagar, as it is alleged that the petitioner can't pay the huge amount. The procedure suggested will involve great delay of the suit. Hence, this application is dismissed.'
There upon, the petitioners filed on 19th September, 1968 an application C. M. No. 1207-J2 of 1968 in this Court setting out the above facts and praying for an early posting of the revision petition before 28th September, 1968, the date to which the hearing of the suit stood posted. The petioners annexed a copy of the application filed in the trial Court on 10th September, 1968. The Civil Revision came up for admission before me on 27th September, 1968. On that date, I admitted the Civil Revision and granted interim stay of the trial of the suit, and directed that the ntoice regarding stay should be returned by 10th October, 1968. The application for stay came up for further orders on 10th October, 1968, after ntoice was served upon the respondent. Shri Dhan Raj Malhtora appeared on behalf of the respondent. After hearing the learned counsel for btoh the parties, I made the interim stay absolute till the disposal of this Civil Revision petition, and directed the Civil Revision to be posted for hearing on 24th October, 1968, at the top of the list, subject to part-heard, if any. It was posted accordingly, but it reached on 25th October, 1968, when I heard the learned counsel for the parties and reserved my order.
(7) Shri M. C. Anand, the learned counsel for the petitioners contended that the learned Subordinate Judge acted illegally and with material irregularity in the exercise of his jurisdiction, or at any rate did nto exercise his discretion judicially in directing an Advocate of Delhi to go all the way from Delhi to Srinagar in Kashmir as a Commissioner in order to record the evidence of witnesses of the petitioners (defendants) when the same purpose could be achieved by commission or a letter of request to the District Judge at Srinagar, within whose jurisdiction the witnesses are to appoint an Advocate of Srinagar as Commissioner to record the evidence of the aforesaid witnesses.
(8) Admittedly, .the witnesses reside outside the jurisdiction of the Court and beyond two hundred miles, and they cannto, therfore, be summoned in view of the provision in Order 16, Rule 19 of the Code of Civil Procedure. The learned Subordinate Judge, thereforee, rightly came to the conclusion that it is fit and proper to examine the witnesses on commission. He, however, appointed Shri K L. Sawhney, an Advocate of Delhi, as Commissioner to record the statements of the witnesses as Srinagar. As the learned Subordinate Judge did nto give any reason as to why he considered it fit to appoint an Advocate of Delhi instead of issving a commission or sending a letter of request to the District Judge at Srinagar to appoint an Advocate at Srinagar as a Commissioner, I gave an opportunity to the petitioners to move the learned Subordinate Judge for such as order. They filed an application accordingly, but the learned Subordinate Judge dismissed the same observing that the procedure suggested would involve a great delay of the suit.
(9) It is true that an order regarding the appointment of a Commissioner under Order 26, Rule 4 is discretionary But, the discretion must be exercised judicially. In doing so, the Court has to consider the just and right thing to do on the facts of each case. In the present case, the petitioners stated in their application that they are unable to pay the expenses of a Commissioner if he is to go to Srinagar from Delhi. Naturally, if an Advocate-Commissioner is to go all the way from Delhi to Srinagar to record the evidence of the witnesses, the expenses would be substantial, while the expenses, can normally be expected to be much less if an Advocate of Srinagar is appointed as Commissioner. The petitioners stated that they could nto afford the expenses for a Commissioner who is to be sent from Delhi, and the lower Court did nto disbelieve the same or state anything to the contrary in its order. The only reason mentioned by the lower Court was that the procedure would involve a great delay in the disposal of the suit. It is difficult to understand why the lower Court considered that the appointment of an Advocate of Srinagar as a Commissioner would involve greater delay than in the case of an appointment of an Advocate in Delhi as a Commissioner to record the evidence at Srinagar. Even assuming that the procedure of appointing an Advocate at Srinagar would involve greater delay, the Court has to take into consideration the toher circumstance, namely, the inability of the party to meet the expenditure involved in the procedure adopted by the lower Court. If the order of the learned Subordinate Judge is to remain, it would mean that the petitioners would be unable to examine their witnesses, and the same would amount to a denial of Justice and a manifest injury to the petitioners. Rules of procedure are intended to do justice to the parties, and considerations of justice have always to outweigh considerations of delay and time. If delay of an unjustifiable nature is caused in a proceeding, the Court has always the power to pass appropriate orders to remedy the situation. This vital and important principle was nto borne in mind by the learned Subordinate Judge in exercising his discretion, and he cannto, thereforee, be said to have exercised his discretion judicially in passing the impugned order. Further, the learned Subordinate Judge did nto take into consideration the fact that out of the witnesses whom the petitioners (defendants) sought to examine on commission, one was an Officer of the Department of Traffic Control, Jammu and Kashmir State, Srinagar, who had to produce official records, and antoher was a clerk of the National Bank of Lahore, Srinagar, who had to produce cheques from the records of the Bank, and that the said two witnesses were nto under the control of the petitioners (defendants) and could nto be examined unless they were summoned be the Court. The omission to take this circumstance also into consideration shows that the learned Subordinate Judge did nto exercise his discretion judicially after taking all relevant and important circumstances into consideration.
(10) Shri Anand also contended that the direction given by the learned Subordinate Judge that the petitioners (defendants) should pay Rs. 100.00 as the counsel's fee to the plaintiff, was without jurisdiction. This contention also is well founded, and must be accepted. It was held by P. V. Rajamanner, C. J. and Rajagopala Ayyangar, J. in The Tata Iron and Steel Company v. S. Khader Ibrahim Rowther, that-
'THE expression 'expenses of the commission' in Order Xxvi, Rule 15, Civil Procedure Code, does nto include expenses of the opposite party such as the opponent pleader's fees or the costs which he might have to incurr to go to the place where the Commissioner will examine the witnesses. It dentoes only the fees to. be paid to the Commissioner and toher expenses ircidental to the issue and execution of the Commission.';
'THE Court has no inherent power to travel outside Order Xxvi, Rule 15 of the Civil Procedure Code, and to impose conditions nto warranted by that or any toher specific statutory provision in that regard. To pass such an order will really amount to passing an interim decree for costs which cannto be sustained under any provision of the Code.'
It is thus clear that the learned Subordinete Judge had no jurisdiction to direct the petitioners (defendants) to pay Rs. 100.00 as the counsel's fee to the plaintiff.
(11) Shri Dhan Raj Malhtora, the learned counsel for the respondent (plaintiff) submitted firstly that if an Advocate at Srinagar is appointed as Commissioner, be might adjourn the case a number of times, and the respondent (plaintiff) might have to go to Srinagar a number of times at considerable expense. This submission has no merit as the respondent will have to go to Srinagar even if an Advocate of Delhi is appointed as Commissioner to examine the witnesses at Srinagar. As regards the apprehension about the possible adjournments, they can be controlled and regulated by the District Judge, Srinagar, by giving appropriate directions to the Commissioner,
(12) Shri Malhtora next contended that the appointment of a Commissioner under Order 26, Rule 4 is discretionary, and that the High Court has no Jurisdiction to interfere under section 115 of the Code of Civil Procedure with the discretion exercised by the lower Court. As already explained above, it is true that the lower Court has a discretion in the matter of appointment of a Commissioner.under Order 26. Rule 4. But, the discretion has to be exercised judicially. Where the lower Court does nto exercise the jurisdiction judicially in the sense that relevant and important circumstances are nto taken into consideration, the order of the lower Court can bs set aside in revision under section 115 of the Code of Civil Procedure. Also. when the discretion is exercised on a wrong or incorrect principle resulting in serious prejudice or injury to a party, the High Court will be justified in interfering with it (vide The Union of India v. M/s. Natarbarlal Jayashankar. and Jaya Shanker Mills (Barsi) Ltd. v. Hazi Zakaria Hazi Ebrahim. In the present case, the lower Court did nto take into consideration some important circumstances, and based its order on the sole circumstance of possible delay, without applying the correct principle that where an order amounts to a denial of justice and is bound to result in manifest iniury to the party, it should nto be passed, even if it saves time and avoids delay. As already explained, considerations as to doing of justice and avoiding of possible injury or prejudice to the parties have to prevail over considerations of mere time and possible delay.
(13) Shri Malhtora relied upon the decision in Rattan Chand v. Rup Das, in which I. D.Dua.C. J. held that-
'PARAGRAPH 35 of the Himachal Pradesh (Courts) Order which enables the High Court to call for the record of any case decided by a Civil Court Subordinate to it, is identical in terms with section 115 of the Code of Civil Procedure. Revisional jurisdiction under section 115 of the Code is discretionary and the High Court is nto bound to interfere even though there may be a serious technical infirmity disclosed in the order of the Court below, is substantial justice has been done. The revisional power conferred on the High Court by these provisions is a kind of supervisory jurisdiction which is to be invoked only in rare cases where the substantial cause of justice demands interference.'
This decision is in no way inconsistent with the view expressed by me above, and on the toher hand, in my opinion, supports my view.
(14) Shri Malhtora also referred to the decisions in Mr. Kather Dutt v. District Magistrate, in which it was held that-
'THE question whether a witnesses should be examined on commission or nto is a matter of discretion of the Court and the question of discretion cannto be made the subject matter of a revision'.
Mirza.Iqbal Ali v. Dr. S. Abdul Ali, in which it was held that an order refusing to issue commission is nto open to revision 'even if the order is calculated to do irreparable injury to a party' and Girdhari Gopal v. Panit Lachmi Narayan', in which it was held that a Court has jurisdiction to fix the fee of a Commissioner and even if it fixes it too high, it cannto be said to act illegally or with material irregularity. The decisions in Mrs. Khader Dutt's case and Girdhari Gopal's case (supra) are in no way inconsistent with the view taken by me. As regards the decision in Mirza Iqbal Ali's case (supra), with great respect to the learned Judges who gave that decision, I am unable to subscribe to the view expressed by them. As regards the direction of the lower Court about the payment of Rs. 100.00, Shri Malhtora could only point out that the same was nto specifically raised as a ground in the Civil Revision petition It is true that no specific ground was taken in the Civil Revision petition. But, when the direction, which was given without jurisdiction, is brought to the ntoice of this Court, this Court cannto and should nto allow the illegal direction to remain, merely because a specific ground was nto taken in the Civil Revision petition.
(15) For the foregoing reasons, the Civil Revision is allowed, the orders of the lower Court, dated 23rd August, 1968 and 12th September, 1968 are set aside, and the lower Court is directed to send without any delay an appropriate Commission or letter of request to the learned District Judge, Srinagar to appoint an advocat at Srnagar as Commissioner to record at an early date the evidence or statements of the witnesses of the petitioners (defendants) at Srinagar after due service of process on them. In the circumstances, I make no order as to costs in this Revision Petition.