1. This is a revision petitioner filed by original defendants No. 2 under Section 115 of the Civil Procedure Code (which will be hereinafter referred to as 'the Code'), against the order passed by the learned Civil Judge, Senior Division, Kutch at Bhuj in Special Civil Suit No. 17 of 1966 below Ex. 161, dismissing the application filed by the petitioner to examine one Girdharilal Bhaiya residing at Akola (Vidharbha) on commission.
2. Petitioner is the father of present opponent No. 1. Opponents Nos. 2 and 3 are the legal representatives of one Talakshi who was original defendants No. 1 and had died. Opponents No. 4 is the original defendants No. 3.
3. According to the petitioner, one Umarbai gifted the suit properties to present opponent No. 1 (plaintiff) by a deed, dated 14-4-1927 at Akola. It is alleged that deceased Talakshi Passed a deed of Karanama on 18-12-1929 in favour of the present petitioner (defendants No. 2) and in that deed there is a mention that the suti property was gifted a to opponent No. 1 (plaintiff on 14-4-1927. Girdharilal, witness to be examined on commissioner, is alleged to have attested the deed, dated 18-12-1929, and he is conversant with the matter. He is residing at Akola which is at a distance of more than 300 milles from Bhuj, the place where the suti if filed. Further, he is suffering from Anaemia, enlarged postage and urinal infection. Medical certificate in that behalf is also produced along with the application. It is on these ground that the aforesaid request to examine that witness on commission was made. That application was opposed by opponent Nos. 2, and 3, legal representatives of Talakshi.
4. The learned trial Judge rejected the aforesaid application on several grounds. On of the grounds was that opponent No.1 had given an application, Ex. 107, on 9-2-1968, requesting that this witness and two other be examined on commission. It was rejected on 5-7-1968. Revision application against it was also dismissed by the High Court. No new grounds are made out. According to the learned trial Judge there is nothing in the medical certification to show that Girdharilal Bhaiya is unable to traved to Bhuj. It is stated therein that he should take rest and treatment for four moths. It is nowhere stated that he is unable to travel because of his illness. There is no affidavit of Girdharilal Bhaiya or the Doctor or show that Gridharilal Bhaiya is not in a position to travel from Akola to Bhuj. According to the learned trial Judge, Gridharilal Bhaiya is not an attesting witness to that gift-deed on the basis of which the suit is filed. The only allegation is that deceased Talakshi had admitted in the writing, dated 18-12-1929 regarding that gift. For the proof of the gift-deed, it is not necessary to examine Gridharilal Bhaiya. According to the learned trial Judge, door Umarbai herself, who was examined, has not supported the plaintiff 's story circumstances, according to the learned trial Judge, it is necessary that an important witness should be examined in the Court so that his demeanour may be noted. According to the learned trial Judge, the petitioner has been also able to bring another witness from Akola for examination at Bhuj. He could as well keep Girdharilal Bhaiya also present. It is on these grounds that the learned trial Judge has stated that he does not think it proper to use his discretion in favour of the petitioner and issue commission as prayed for.
5. Mr. Act. K. Mankad, appearing for the petitioner , has urged that in O. 26, R. 4 of the Code, no doubt, the words used are,
'Any Court in any suit issue a commission for examination of any person resident beyond the local limits of its jurisdiction.........'.
But in Order 16, Rule 19 of the Code, the word used is 'shall'. That rule reads:
'No one shall be ordered to attend in person on give evidence unless he resides--
(a) within the local limits of the Court's ordinary original jurisdiction, or
(b) without such limits but at a place less than fifty of (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than three hundred miles distance from the Court-house'.
It is, therefore, urged that admittedly, witness to be examined on commission is residing at a distance of more than 300 miles from the place where the Court is situate. In view of this provision of Order 16, Rule 19 (by-law) of the Code, the Code is bound to issue commission. It is the statutory right of the party to examine such witness on commission. The Court has no jurisdiction to refuse such request. That being so. Mr. Mankad has submitted that this Court could interfere with such an order as the error committed by the trial Court is jurisdictional error. Mr. Mankad has submitted that the word 'may' referred to in Order 26, Rule 4 of the Code should be construed to mean, 'has given authority to'. In support of his arguments, he has invited my attention to the decision of Subba Rao, J. (as he then was) in Subbaraya Padavachi v. Kozhandaivel Udayar, AIR 1949 Mad 496. This decision no doubt lends support to his argument. It is observed therein:
'Act party to a suit has a right to ask for the issue of a commission to examine a witness who resides beyond the limits fixed under Order 16, Rule 19 (by-law) unless the Court is satisfied that a party is merely abusing its authority to issue process. It is not for the Court to decide whether the party will be benefited thereby or not; that is a matter entirely fro the party'.
In the instant case, Mr. Mankad has submitted that the trial Court has not recorded a finding that the petitioner is merely abusing its authority to issue process. Subba Rao, J., has, in the course of his judgment, quoted the observation made by Wallace, J. in Jagannatha Sastry v. Sarathambal Ammal, ILR 46 Mad 574 = (AIR 1923 Mad 321). It is observed:
'Wallace, J., after considering the various decision cited before him expressed his conclusion as follows:
'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 limits fixed under Order 16, Rule 19 (by-law), Civil 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 there by not, that is matter entirely for the party' with great respect, I agree with this observation'.
Subba Rao, J., referred to another decision in Palaniappa Chettiar v. Narayanan Chettiar, 1946-1 Mad LJ 197= (AIR 1946 Mad 331), wherein Bell, J. has observed:
' 'In my opinion it is a matter of discretion for the Court in the circumstance of each particular case''.
Subba Rao, J., explained that decision by observing:
'That observation in that case is a mere obiter as the finding in that case was that the particular application was an abuse of the process of Court'.
6. In Act. V. Nataraja Konar v. Poovalingam Pillai, (1967) 2 Mad LJ 369, a single Judge of the Madras High Court has observed:
'Issue of commission in respect of case falling under Order 26, Rule 4 and 5 is not one of discretion, but is it in the nature of a statutory right of the litigant, provided he is not guilty of laches and the party to a suit has right to ask for the issue of commissioner to examine witnesses beyond the prescribed distance'.
In S. K. Subramaniam v. N. S. Krishnamachari, (1971) 1 Mad LJ 211, it is observed:
'In the case of the parties the Court has a discretion in issuing a commission and the discretion will be very strictly exercised in the case of the plaintiff, while in the case of the defendants it would be more liberally exercised. In either case it is clearly within the discretion of the Court to consider whether the party should by-law examined in the presence of the Court or on the commission. The fact that the party is residing beyond 200 miles from the Court house does not confer any right to be examined on commission. The position with regard to witnesses is different. Act witness residing at a distance of more than 200 miles has a right to be examined on commission provided that he is not within the control of the party making the application, and that the application is not an abuse of the process of Court or actuated by mala filed or fraud. consideration like the conduct of the persons making the application for commissioner, the delay or laches as well as negligence on his part in making such an application can be taken into account, and it cannot be suggested that at any stage and in all circumstance however negligent the party may be the Court is bound to issue a commission when sought for a by party. From the mere relationship or friendship it cannot be assumed that they are under the control of the petitioner. Supreme Court long as it is not established that the witnesses are under the control of the petitioner, the petitioner has got a legal right to have a commission issued unless the Court is satisfied that the party is merely abusing its authority'.
If the ratio if these decision is accepted, it is not doubt true that the so far as the witness to be examined on commission is concerned, it will be the statuary right, and it will not be merely within the discretion of the court to be examined the witness on commissioner or not.
7. Mr. Vaidaya, appearing for opponent No. 2, has urged that Section 75 of the Code, which is a substantive section dealing with Power of court to issue commissioner, reads:
'Subject to such condition and limitation as may be prescribed, the Court may issue a commission-
(a) to examined any person..............'
The word used is 'may' and not 'shall'. In Clause (a) the words used are, 'to examine any person'. The words, 'any person' are comprehensive enough to include a person other than a party, meaning thereby, that 'any person will also include a witness. In the substantive section which deals with Power of Court to issue commissioner, no difference is made between a witness and a party. The Court has been given a discretion. Similar is the position regarding the language adopted by the legislature in O. 26, R. 4 of the Code. Mr. Vaidaya has submitted that in Order 16, Rules 19 of the Code, the word 'shall' has been purposely used. It only means that the Court cannot compel a witness who is residing outside the local limits of the Court's ordinary original jurisdiction and who is residing at a distance of the more than three hundred miles (so far as the Gujarat State is concerned ) from the place where the Court is situate to attend the Court. It would, therefore, mean that even if a summons is summoned on such a witness to attend the Court to given evidence and he does not attend, no penal consequence for non-appearance and for disobedience to the order of the Court will ensue. It does not mean that in each and every case when a party wanted to examine a witness on commission, it is the statutory right of such a party to examined such a witness and if the Court refuses to examine such a witness on commissions, the Court commits a jurisdictional error. In support of his arguments, he has invited my attention to several decisions.
8. In Shantibai v. Motiram Sitaram, AIR 1946 Sind 30, a Division Bench Judicial Commissioners, has observed:
'In principle there is no difference in the application of Section 115 to an order made under Order 26, rules 1 under which commission is granted on the ground of sickness or infirmity or under Order 26, Rule 4 where a commissioner is granted on the ground that a witness is resident beyond the local limits of the Court's jurisdiction. An order that the Commission shall or shall not issue is not a case decided within the meaning of Section 115. Act proper discretion is to be exercised under Order 26, Rule 4 as a proper discretion is to be improper exercise of that discretion odes not attract the application of Section 115. An aggrieved party, however, is not entirely without remedy in such a case, for in case of need it is possible to invoke the assistance of Section 151'.
Mr. Vaidya also invited my attention to the decision of a Division Bench of the Bombay High Court in Dhanbai Burjoriji Cooper v. Bablibai Shapurji Sorbji, 36, Bom LR 272, At. p. 275 = (AIR 1934 Bom 168), the relevant observation made are:
'Here Mr. Daphtary for the appellant contends that he is entitled as a matter of right of to an order for the taking of this evidence on commission. The order is asked for under Order XXVI, Rule 4, which provides that any Court may in any suit issue a commission for the examination of any person resident beyond that local limits of its jurisdiction. The language appears to confer a discretion upon the Court, and not to give a statutory right to a party. Mr. Daphtary referred us the decision in ( ( 1922) ILR 46 Mad 574 = (AIR 1923 Mad 321), in which Mr. Justice Wallace did express the view that party had a statutory right to taken on commission the evidence of a witness who was resident more than two hundred miles from the Court, though in that case it was not necessary for him to go as far as that, because he held further that if there was a judicial discretion, the discretion of the lower Court has been wrongly exercised. I am, however, clearly of opinion that the view indicated in that case 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 desire to taken evidence on commission, but the rights of the opposite party. If evidence is taken on commission, the opposite party is taken 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. Moreover, in some countries on cross-examination at all is allowed in the case of evidence taken on commission. The Court, therefore, 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. If that is so, it is difficult to see how an order refusing a commission can be an order affecting the merits of the question between the parties by determining some right. No doubt the appellant is deprived by the order of the right to give this evidence in the particular way in which say desires to give it, and it may be that it will be impossible for her to get the evidence in any other way, but the order is purely an interlocutory order relating to procedure. If the suit is heard and determined against the present appellant, she will have a right to appeal, and she may no doubt then contend that the order refusing a commission was wrong. Her rights are not finally determined by the present order'.
It is thus evident that a Division Bench of the Bombay High Court in the aforesaid decision, which was given prior to the bifurcation of the Bombay State , has taken a view which runs counter to the view taken by the Madras High Court in several decision referred to by me earlier. This decision of the Bombay High Court is binding on me.
9. In M/s Filmistan Pvt. Ltd., Bombay v. M/s Bhagwandas Santprakash, : AIR1971SC61 the Supreme Court has to deal with the substantive previsions of Section 75 of the Code, referred to by me above. It is observed by the Supreme Court:
'The witnesses are relevant. The order to examine them is discretionary and as such cannot be interfered with by this Court'. It thus appears that the Supreme Court has also observed that it is in the decision of the Court to examine the witnesses on commission or not. It is true that the Supreme Court as well as the Bombay High Court has not considered the provision of O. 16, R. 19 (b) of the Code. In my opinion, the provisions of Order 16, Rule 19 (b) of the Code only indicate that a witness who three hundred miles (in Gujarat) from the place where the Court is housed, cannot be compelled attend the Court as a witness, but it only means that if such a witness is served with a summons to appear in the Court to give evidence and does not appear in obedience to it, he cannot be visited with the penal consequence for such disobedience,. It does not mean that the party has got a statutory right to examine such a witness on commission as has been canvassed by Mr. Mankad before me. It is no doubt true that the discretion has to be exercised judicially. In the instant case, the learned trial Judge has given reasons why he was not inclined to use his discretion in favour of the petitioner. It is true that some of the reasons given by him may not appeal to this Court. But one important ground given by him is that in the instant case the suit claim is based on the gift-deed, dated 14-4-1927. Girdharilal Bhaiya, witness to be examined on commission, is not the attesting witness to it. Umarbai, who is alleged to have made the gift in favour of opponent No. (plaintiff) has been examined in the suit of the and she has not supported that story of the gift. The learned trial Judge, therefore, feels in the circumstance of the case that it is desirable that Girdharilal Bhaiya, who is alleged to be an attesting witness only to a Kararnama wherein it is alleged that deceased Talakshi has admitted that writing, should be examined in the Court so that the demeanour be noted. It cannot, be said, on taking into consideration the aforesaid ground that the trial Court has not used in discretion judicially. It cannot be said that it has been used arbitrarily. I, therefore, hold that no case is made out to interfere with such discretionary order in the exercise of the revisional jurisdiction of this Court under Section 115 of the code. The revision petitioner, therefore, fails.
10. Revision petition is dismissed. Taking into consideration the circumstance of the case, each party is ordered to bear its own costs in this revision petition.
11. Petition dismissed.