J.D. Jain, J.
(1) This application is directed against order dated 4th September 1982 of an Additional District Judge whereby he declined to issue commission to Bombay and Puna civil courts for examination of certain witnesses on interrogatories as prayed for by the petitioner/wife.
(2) The facts germane to the decision of this revision petition succinctly are that the petitioner filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (for short the Act) alleging that the marria'ge between her and the respondent was solemnised on 19th March 1978 at Puna and thereafter the parties left for Kashmir on 22nd March 1978 for honeymoon. They stayed there for a few days and consummated the marriage. Thereafter, both of them lived together as husband and wife at' Bombay for some time and the respondent then returned to Cochin where he was already posted after expiry of his leave. In May 1979 the respondent was transferred to Bombay and both she and the respondent lived together and cohabited at 208, Bombay Air-conditioned Market, Tardeo, up to the end of July 1981. During the said period she conceived twice from the respondent first in December 1978 and again in June 1980, but both the pregnancies were terminated at the instance of the respondent. In August 1981 the respondent was transferred to Naval Headquarters at New Delhi. Thereupon, he started living with his father at Laxmibai Nagar. However he kept the factum of their marriage a guarded secret from his parents and, thereforee, the petitioner did riot live with him at his father's house. The respondent thus withdrew from the society of the petitioner without reasonable excuse with effect from November 1981.
(3) The respondent contested the petitioner vehemently and denied the factum of alleged marriage between the parties. He took up the stand that the petitioner was very friendly with him and, thereforee, both of them went to Kashmir just to enjoy life. The petitioner being a rich lady purchased her own ticket in her maiden name-i.e. Miss Sunita Suri while he availed of concessional ticket. Subsequently too they kept on meeting as friends only and enjoyed the company of each other but he denied having with lived the petitioner at Bombay. He asserted that during his posting at Bombay he was a member of the Ward Room Mess and was all along residing there as a bachelor. As for abortion of pregnancies, his version is that the petitioner was a lucky go type of lady and he had been enjoying her company. So out of sense of obligation which he owed to her on account of their friendship he issued a certificate to the petitioner in order to save her from disgrace, infamy and social stigma.
(4) During the course of the proceedings, the petitioner moved an application under Order Xxvi Rule 4 read with Section 151 of the Code of . Civil Procedure (for short the Code) for issue of commission to the District Judges of Pune and Bombay for examination of certain witnesses on interrogatories. She explained that having deserted by her husband i.e. the respondent she was not in a position to incur huge expenditure in bringing those witnesses from Pune and Bombay. Since they were residing beyond the local limits of the jurisdiction of the civil courts at Delhi they cannot be summoned in view of the bar contained in Order Xvi Rule 19 of the Code. Hence, according to her, it was absolutely necessary that those witnesses be examined on interrogatories by issue of commission.
(5) The said application was vehemently opposed by the respondent who contended that the petitioner had deliberately chosen [he forum at Delhi for seeking redress of her alleged grievance although she could as well have filed the petition for restitution of conjugal rights even at Bombay or Pune in view of the averments made by her therein and she had moved the application for examination of various witnesses on commission with the ulterior motive of harassing and causing prejudice to- the respondent in his defense. It was urged that the defense would not be able to expose the utter unreliability of the witnesses sought to be examined by the petitioner on commission as would be the case if they were examined orally in Court and the Court was able to watch and note the demean our of those witnesses. In other words, the said application reflected an endeavor on the part of the petitioner to avoid effective cross-examination and observance of the conduct and demean our of the witnesses by the court itself.
(6) The contentions raised by the respondent seem to have found favor with the learned Additional District Judge who has, thereforee, declined to issue the commission. He has, inter alia, observed :
'THE testimony of the witnesses examined to prove the marriage ceremonies gone through by the parties to bind them in a valid matrimonial contract should be recorded before the court so that the court had advantage of noting their demean our to come to a right conclusion about their veracity and the value of their testimony. In case these material witnesses are examined on commission the court would be deprived of this advantage. .............. .......... It has not been explained as to why the petitioner filed this case in Delhi Court instead of filing it in Pune court where she would have the advantage of producing the witnesses in the Court or getting them summoned as they were living within 500 Kms. of the court house there. Anyway, if she has chosen to file the petition in a Delhi Court. She should have also arranged to produce her witnesses.'
(7) I have heard counsel for the parties at length and bestowed my careful thought and consideration on the pros and cons of examination of various witnesses on commission. It is, no doubt, true that on a bare reading of Order Xxvi Rule 4 of the Code, the issue of a commission for the examination of a witness on interrogatories or otherwise would appear to be a matter of judicial disoretion. This is self evident from the words 'may issue' which appear in the opening sentence of the said rule, However, the discretion conferred on the court by the said rule has to be exercised judiciously on well settled principles. Having regard to the bar contained in Order Xvi Rule 19 of the Code which precludes the court from compelling the attendance of the witnesses residing more than 500 kms from the court house, it has been held by various High Court that the commissions should be granted, as of right, in the case of witnesses residing beyond the limits fixed under Order Xvi Rule 19. In Jagannatha Sastry v.Sarathambal Ammal and others Air 1923 Mad 321, Wallance, J., after considering the various decisions cited before him, expressed his conclusion as follows :
'THE balance of authority is in favor 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 satisfied that 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'.
(8) This view has been followed in several decisions of various High Courts, viz., Moodavanchu Borraya v. Kasavajjula Ramkoti Sashtri Air 1949 Mad 468, Thakur Umaid Singh v. Thakur Manohar Singh (1976) 1 AWR 382, Ramesh Siram Sane v. Bhagwandas Atmasingh, : AIR1972AP216 and Vasant Trading Corporation and another-v. Dhamanvala Arvind Silk Mills (1974) 15 Guj LR 869. In the last mentioned case a Division Bench of Gujarat High Court observed that:
'WHEN the Court is confronted with a situation where a witness proposed to be examined by a party resides at a place beyond the specified limit of 300 miles and the Court itself is powerless to secure the presence of the witness to attend the court to give evidence, no option is left to the court. It is not a question of exercising discretion at all in such an event, for discretion can be exercised only provided two courses are open. 'Discretion' does not mean the whim or the pleasure of the court. 'Discretion' postulates the conception of two courses being open to the court. In a case where a witness resides at a place beyond 300 miles, the court itself does not have two courses open to it in order to back up with sanction or coercive power its order to the person concerned to attend the court to give evidence.'
(9) Significantly, however, the learned Judges while arriving at this conclusion recognised that under special circumstances the court can decline to issue a commission. The following observations made by their Lordships are very pertinent in this context :
'OF course the discretion will exist if the Court comes to the conclusion that the request for issuance of commission is made me rely to delay the proceedings notwithstanding the fact that the evidence sought to be adduced by examining such a witness has no bearing on any of the controversies before the Court. In other words, if the evidence is irrelevant, if the evidence is immaterial, and if the evidence even if adduced cannot affect the decision of any point in issue one way or the other, the court is not obliged to issue a commission merely because a request is made for issuance of a commission to examine a person beyond the specified limit of 300 miles............... ..................so also it would follow that the machinery of the Court is not to be set in motion at the mere whim or pleasure of the litigant even though it is not necessary to make recourse to that machinery. If a person is required to examine his own employee or him own intimate relative such as his wife or brother or son who would be naturally expected to respond to his request to attend the 'Court, it can be said that the application for issue of commission is not bona fide and the Court would not be obliged to issue a commission...,., ................... ......'
(10) Reference may also be made with advantage to Jaya Shanker Mills (Barsi) Ltd. v. Hazi Ebrahim Air 1962 AP 435 : 'the plea that observing the demean our of a witness by the judge is not a strong or sufficient ground for refusing issue of commission for examination of a defendant residing beyond the local limits of the jurisdiction of the Court cannot be accepted. Issue of commission being a matter of discretion, each case has to be judged on its particular facts and ends of justice must undoubtedly be a paramount consideration.'
(11) On the other hand there are some decisions indicating that a party cannot claim issue of commission as of right even in a case where the court feels powerless to issue a process for the attendance of a witness because of his residing beyond the limits specified in Order Xvi Rule 19. In Shah Velji Nagji v. Hemkuverhai and others, : AIR1973Guj207 , a learned Judge of Gujarat High Court expressed the view :
'Iam, however clearly of opinion that the view indicated in that case (Jagannatha Sastry v. Sarathambal Ammal and others Air 1923 Mad 321) that a party has a statutory right to an order for taking evidence on commission is not well founded. On such application the court has to consider not only the claim of the party who desires to take evidence on commission, but the rights of the opposite party. If evidence is taken on commission the opposite party is deprived of the right of cross-examining the witness before the Judge who has to determine the suit, and that in the case of an unreliable witness, is a very valuable privilege.'
(12) In Satyanarain v. Bajranglal, , a learned Judge of Rajasthan High Court in a very lucid exposition of the relevant provisions of law has aptly observed :
'ALL that Order 16 Rule 19, Civil Procedure Code says is that the personal attendance of such witnesses in the court shall not be enforced by a process, but he does not lead to an inference that such witnesses are necessarily to be examined on commission in any event. Order 26 Rule 4 is an independent '...provision and is in no way controlled by Order 16, Rule 19, Civil Procedure Code. From a bare reading of Order 26, Rule 4 Civil Procedure Code, it will appear that the word 'may' has been used in that section which gives indication that the court has got discretion.'
(13) Somewhat similar view has been expressed by a learned Judge of J. & R. High Court in Sri Ram v. Ashwani Kumar and others Air 1978 J& K78. He too has observed that :
'THE Commissions are granted as of right in the case of witnesses residing 'beyond' the limits fixed under Order Xvi Rule 19 Civil Procedure Code . .-...................Order.XVI Rule 19 Civil Procedure Code . does not take away the discretionary powers given under Order Xxvi, Rule 4'.
(14) In Dhanbai Burjorji Cooper v. Bablibai Shapurji and others Air 1934 Bom168, a Division Bench of Bombay High Court held that :
'IF evidence is taken on commission, the opposite party is deprived of the right of cross examining the witnesses before the Judge ' who has to determine the suit and that, in the case of an unreliable witness, is a very valuable privilege...... . ......The Court thereforee has to consider what is the right thing to do on the particular facts of each case, and in my view, it is impossible to say that a party asking for a commission is entitled as of right to an order.'
(15) Similarly in Orugunati Ranganayakamma v. Maduri Lakshminarasamma and another, : AIR1979AP8 , where the evidence of an attestor of a Will was sought to be examined on commission, it was held that:
'THE evidence of an attestor of a Will is a very material piece of evidence which will tilt the balance and decide the rights of the parties--............ it is equally necessary for the Court to note the demean our and watch this witness, who is one of the attestors while being examined'.
(16) It was further observed by the learned Judge that :
'MERELY because the witness resides outside the jurisdiction, that does not entitle a party to have a commission issued for the examination of witness as of right........................... Observing the demean our of a witness by the Judge is a strong or sufficient ground for refusing issue of commission.'
(17) From a review of the foregoing decisions of various High Courts, there appears ostensibly, a divergence of opinion as to the correct interpretation of the ambit and scope of Order Xvi Rule 4 but on' a closer and careful examination of the different strains of thought it clearly emerges that issue of a commission under Order Xxvi Rule 4 in a case where the personal attendance of a witness cannot be enforced because of the restriction imposed by Order Xvi Rule 19 although discretiona'ry with the Court, should ordinarily be allowed as a matter of course. It is for the simple reason that a party cannot be punished merely because it feels helpless in procuring the attendance of a witness and the court too is powerless to order such a witness to appear in person. The Court, of course, must be satisfied about the compelling necessity to examine such a witness. No doubt, observance of conduct and demean our of a witness, whose evidence is very material to the fact in issue in a case, would be a relevant consideration but certainly it cannot outweight the paramount consideration of ensuring a fair and just trial so as to prevent miscarriage of justice. In the cases adverted to above, the consideration that the court may observe the demean our of the witnesses, if examined in open court, weighed heavily because decision in those cases rested on the oral testimony of one or two witnesses only and it was, thereforee, held that examination viva voce would be more proper method. It may be pertinent to notice here the observations of the Supreme Court in M/s. Filmistan Private Limited v. M/s. Bhagwandas Santprakash and another, : AIR1971SC61 in which a commission had been issued for examination of certain witnesses residing in Kabul. Said the Supreme Court:
'THE fact that the witnesses examined on Commission cannot be effectively cross-examined or their examination will entail heavy costs are not sufficient circumstances to interfere with the discretion of the learned trial Judge.'
(18) In re U.R. S.S. Subramanian Chettiar and others, : AIR1955Mad210 , a learned Judge of that Court aptly remarked that :
'IN all cases where a commission is issued, the court cannot observe the demean our of a witness. The value of 'demean our' has been to much emphasised; demean our is one of those subtle things which are important only when the evidence is evenly balanced.'
(19) On an overall view of the matter, thereforee it would appear that though the demean our of a witness is quite an important factor in appraising the evidence of a witness, especially when a witness is deposing to facts from his personal knowledge but it is not so important as to take away the right of a party to issue of a commission in deserving 'cases where the testimony of the witness is very material but he is not under the control of the party wanting to examine him and his. personal attendance cannot be enforced by coercive process of law. The court must consider all relevant aspects of the matter before it exercises its discretion one way or the other so as to advance the cause of justice and fair play.
(20) A proviso has been added recently to Order Xvi Rule 19 of the Code by Amending Act 104 of 1976 which empowers a court to direct a witness to attend the court in person even though such a witness lives beyond the local limits of, the court specified under the main provision provided transport by air is available between two places viz., the place where the court house is situate and the place where the witness resides and the witness is paid the fare by air. It is obviously an enabling provision and has been inserted in view of the improved facilities of transport. The object of the proviso clearly is that if the witness is residing at a place which is connected with the place of. the court house by air the court may, instead oF issuing a commission, direct in appropriate cases that summons be issued for attendance of the witness in person on his being paid fare by air. However, such an order cannot be passed mechanically in each and every case and before resorting to this proviso the court must make sure that the witness is affluent enough to afford payment of fare by air otherwise it may result in undue hardship and even miscarriage of justice in many cases.
(21) Coming to the facts of the instant case it may be noticed that the list of witnesses to be examined on commission has been considerably curtailed by the petitioner. Out of the nine witnesses now sought to be examined on commission four are residents of Pune where the alleged marriage took place and they are sought to be examined to prove the factum of marriage. These witnesses comprise Cdr. Mulk Raj Suri, father of the petitioner, Mrs. B.M. Suri mother of the petitioner. Miss Renu Suri, sister of the petitioner and one Pt. Radhey Shyam of Hanuman temple who had performed and conducted the marriage ceremonies. Ex-facie they are all material witnesses as their evidence may have direct bearing on the just decision of the case. However there can-be no manner of doubt that the parents and sister of the petitioner, being her close kinsfolk would be vitally interested in her and they can certainly be persuaded by her to come over to Delhi and appear in person for their examination as witnesses. Their viva voce cross-examination would be imperative in order to elicit ;all material information and test their credibility. This purpose would hardly be served if they are examined on interrogatories because in that event opportunity of hearing the exact and precise answers given by these witnesses would be lost. So, despite lot of expense and inconvenience which their personal attendance in court may entail it would be necessary in the interest of justice that they are examined in court and not on commission. The same remarks would 'by and large hold good in the case of Pandit who performed the marriage ceremonies. No doubt, he is ostensibly a non-party witness but there is no apparent reason why the petitioner should not be able to persuade him to come over to Delhi for personal examination in the larger interests of justice. Hence, there is no cogent reason for issue of commission for the examination of Pune witnesses.
(22) Dr. (Mrs.) Jyoti Bilani, Manager strand Hotel. Manager, Delamer Hotel and Mr.Y.T. Madraswala are from Bombay. They are being examined as witnesses by the petitioner to prove that she and the respondent stayed together and lived as bust and and wife for sometime at Bombay. Dr. (Mrs.) Jyoti Bilani is the landlady of premises 208, Bombay Air-conditioned Market, Tardeo. The other witnesses are sought to be examined 'to prove certain entries in registers and documents which are in their possession. Apparently none of these witnesses is amenable to control or persuasion by the petitioner and they would not like to undergo the inconvenience and discomfort of traveling by rail all the way from Bombay to Delhi and back. As for air fare, the petitioner does not ostensibly have the necessary means to pay the same. She is being paid ad-interim maintenance allowance only at the rate of Rs. 400.00 per month. So directing her to pay air fare may result in undue hardship or denial of justice to her as she may not be able to comply with the direction for want of necessary funds. Moreover, not much would turn on the demean our of these witnesses. The argument that the petitioner ought to have made the petition for restitution of conjugal rights either at Pune or at Bombay where a bulk of material witnesses reside is hardly germane to the decision of this question. Being dominus litus. She has chosen a forum which she thought would be non controversial as the respondent is posted and residing at Delhi. Hence, the ends of justice will be better served if they are allowed to be examined on commission. The same consideration will hold good in the -case of Manager.. Casina Hotel, Cochin.
(23) To sum up, thereforee, this revision petition succeeds in part. Hence, I set aside the impugned order and direct that the trial Court shall issue commission for the examination of the witnesses at Bombay and Cochin on interrogatories. The commission will issue to the principal courts of original jurisdiction at both the places. It will be open to the respondent to file cross-interrogatories or cross-examine the witnesses orally at the time of the execution of the commission. A request shall be made to the courts concerned at both the places to this effect so that timely notice of the date time and place of the examination of the witnesses on commission is given to both the parties and they can avail of the opportunity of being present before the commission if they so choose. During the course of arguments a prayer was made by the learned counsel for the petitioner that the respondent be directed to pay additional litigation expenses having regard to the high cost of examining the witnesses on commission or otherwise. However, no direction can be made in this regard by this court and if so advised the petitioner may make an application to the trial court in this behalf, but the respondent is directed to pay Rs. 500.00 on account of litigation expenses in this court.