M.P. Thakkar, J.
1. Whether a party has a right to claim issuance of a commission to examine a witness residing beyond the prescribed limit of 300 miles from the court house (See Order 16 Rule 19 of Code of Civil Procedure) under Order 26 Rule 4 of the Code, is the question which has been referred to a Division Bench by D.P. Desai J. by his order under reference.
2. It appears to have been argued before the learned Judge that Dhanbal Burjorji Cooper v. Bablibai Shahpurji Sorabji 36, Bombay Law Reporter, 272 was an authority in support of the proposition that no party had a right to claim issuance of a commission even in a case where witnesses were residing at a place 300 miles from the court-house. The learned Judge therefore considered it desirable to have the question resolved by a larger Bench.
3. D.P. Desai J. himself was of the view that except under certain circumstances, a party had a right to claim issuance of a commission as a matter of course in a case where witnesses were residing at a place beyond the specified limit. He was of the view that the law laid down by Wallace J. in Jagannatha Sastry v. Sarathambal Animal and Ors. A.I.R. 1923 Madras 321, was sound. A doubt regarding the correctness of this view however was expressed in the context of the observations made by the Division Bench in Dhanbai's case (36 Bombay Law Reporter 272). It is in this background that we have to resolve this controversy.
4. Before we approach the point at issue it is necessary to examine certain other provisions of the Code. Order 16 of the Code of Civil Procedure enacts the machinery for procuring attendance of witnesses. It provides for issuance of a summons by the Court and specifies the machinery by which the summons is to be served to the witness who is required to attend the Court in order to give evidence or to produce documents. Rule 10 of Order 16 of the Cods of Civil Procedure embodies the coercive machinery of the Court in order to ensure that the summons issued by the Court is respected and the witness complies with the requisition to attend the Court to give evidence or to produce the document as per the summons, la case of failure of the witness to respect the summons and the command contained therein, the Court issuing the summons is empowered to issue a proclamation requiring the witness to give evidence or to produce the document as the case may be (see Clause (2) of Rule 10 of Order 16). Under Clause (3) of Rule 10 of Order 16 the Court can also, in its discretion, issue a warrant, either with or without bail, for the arrest of such person. It can also pass an order for the attachment of the property not exceeding the prescribed limit. These provisions are essential and have been enacted with a purposeful eye, because the contesting parties in a suit usually have no control over the witnesses who may be required to give evidence. The machinery of the Court for redress of injustice will be rendered altogether ineffective if a party is not enabled to examine such witnesses as may be necessary in order to procure a just decision from the court on the matter at issue between the parties. All that a litigant can do in regard to a person over whom he has no control is to make to him a request to attend the Court. The said person, however, may, either on account of his pre-occupation, or, on account of his disinclination to take the trouble to attend the Court, refuse to oblige the litigant. In such an event the litigant would be rendered utterly helpless. And if there were no coercive machinery built in the Code, courts themselves would be also equally helpless. That is the reason why the aforesaid provision has been enacted under Order 16 Rule 10 of the Code and the court has been empowered to issue summons to a witness and also to secure compliance with the requisition contained in the summons either to give evidence or to produce documents. The power of the Court itself is, however, not unlimited. When the question as regards issuance of a summons arises th? Court has no unqualified power under the provisions of the Civil Procedure Code to issue a summons under Order 16 to a witness to attend the Court regardless of the distance of his place of residence. The limitation is embodied in Rule 19 of Order 16. It inter alia provides that no one shall be ordered to attend in person to give evidence if he resides at a place more than 300 miles distant from the Court-house. In other words in such an event the Court cannot issue a summons for the Court is not empowered to compel a man residing at a place beyond 300 miles to comply with the requisition at the peril of warrant for his arrest being issued or his property being attached under the coercive machinery embodied in Rule 10 of Order 16 C.P.C. It is thus abundantly clear that in the case of a witness residing at a place beyond the distance of 300 miles from the Court-house the Court can neither issue a summons nor enforce the command contained therein directing the person to attend the Court to give evidence. In the light of this situation we will now have to examine the provisions in regard to issue of a commission to examine a witness contained in Order 26 of the Code of Civil Procedure. The Legislature in its wisdom has provided two modes for examining a witness. One is by examining a witness before the Court itself. And the second is examination of a witness at a place other than the court-room under specified circumstances. And these circumstances are specified in Order 26 of the Civil Procedure Code. In the present case we are concerned with Rule 4(1)(a) which provides for issuance of a commission for examination of any person resident beyond the local limits of its jurisdiction. No doubt it is provided therein that any Court may issue a commission for the examination of such a person and by employing the expression 'may' discretion has been conferred on the Court. But such discretion in our opinion is conferred only in regard to a person in respect of whom recourse to other mode of examination is open to the litigant as also to the court. In other words, where a person resides at a place within the specified limit of 300 miles the court has discretion in the matter for it is competent to the Court to require a party to resort to the other mode of examining a witness, namely,' by examining him in the Court pursuant to the summons issued by the Court obedience to which' can be ''secured by the court itself. But when the court is confronted with a situation where a witness proposed to be examined by a party presides 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. In fact by enacting Rule 19 of Order 16 the Legislature has disabled the Court from issuing any such summons to a party residing at a place beyond 300 j miles from the? court-house. Surely the Court cannot have discretion to refuse- to issue a commission even when it has no power to issue summons,? In order to endorse the proposition that the Court has discretion in the matter, it will have to be posited that a litigant can get justice only provided his witnesses 'reside within the limits of 300 miles, for, the Court can not lend aid of its machinery to ensure the attendance of such a witness and the party concerned has no power himself. Both would be helpless as none ]can have any power to secure the presence of the witnesses'/concerned. It is, therefore, abundantly clear that notwithstanding the fact that the expression 'may' has been employed, the Court will not have any discretion except under the well-established principles of law to ensure that the process of law is not misused. Of course the detention will exist if the Court: comes to the conclusion that the request for issuance of commission's made merely to delay the proceedings notwithstanding the fact-that the 4 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 JsJirrele-vant, if the evidence is immaterial, and if the evidence jeven 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 Jmerely because a request is made for issuance of a commission to examine a person beyond the specified limit of 300 miles. The Court is of course Bunder no obligation to issue any process for enforcing the attendance of a witness, beit a summons or be it a requisition in the form of a commission, unless the If evidence of the witness proposed to be examined fis relevant and material and the application-for the examination of such a witness is made in good faith. If a recourse to this provision is made merely to protract the-matter notwithstanding the fact that the proposed evidence has no bearing, it amounts to misuse of the process of law. It amounts to making recourse to the machinery of the Court not for a bonafide purpose but with sams ulterior motive without good faith. In such an event the Court can, refuse, in fact it must refuse, the request for issuance of a commission. 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. For instance if a person is required to examine his own employee or his 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 unless it is shown by the other side that notwithstanding the relationship, the witness is not expected to respond to his request to attend the Court to give evidence by virtue of strained relationship or his hostile attitude or some handicap. In other words, if a witness sought to be examined is under the control of the litigant himself, then and only then the Court has a discretion in the matter and is not obliged to issue a commission merely because a prayer in that behalf is made. But subject to this qualification a commission would have to be issued as a matter of course for the reasons articulated a moment ago. It may be clarified that these provisions relate to examination of a witness and not to a litigant himself. The litigant cannot insist on himself being examined by commission instead of his appearing in the Court to give evidence. When a party to a suit or proceeding gives evidence he obliges none but himself. There is no occasion therefore for issuance of a summons. There is also no question of setting the Court's machinery into motion to ensure his appearance in the Court to give evidence. There is assurance arising out of his self interest which makes it incumbent on him to give evidence in the Court. These provisions therefore do not apply in regard to examination of a litigant himself and such a party cannot claim a commission for examination of himself. Of course if a litigant is sick or is suffering from any infirmity, it would stand on a different footing and he would be entitled to claim issuance of commission on that ground. He, however, cannot claim issuance of commission merely on the ground that his place of residerce is situated beyond 300 miles from the court-house. In our opinion, therefore a party has a right to claim issuance of commission to examine his witnesses provided they reside at a place beyond the specified limit of 300 miles unless the Court comes to the conclusion that the application is not made in good faith, or that the evidence of the witness sought to be examined is irrelevant and immaterial, or that the witness proposed to be examined is under his control and physically able to attend and there is no occasion for issuance of a commission which is issued only to enable the party to secure the evidence which without the aid of the machinery of the Court he cannot secure.
5. The Learned Counsel for the opponent called our attention to Mowji Dharamsey v. Nemchand Naranji and Ors. I.L.R. 23 Bombay 62. It is a decision of 1899 before the Code of Civil Procedure was enacted in 1908. That decision by a learned single Judge of the High Court of Bombay under the circumstances cannot render any assistance in resolving the question presented by this petition.
6. The Learned Counsel has also relied on Jaya Shanker Mills (Bars) Ltd. v. Hazi Zakaria Hazi Ebrahim A.I.R. 1962 Andhra Pradesh, 435. There is nothing in the said decision which runs counter to the decision which we have taken. Our attention was called to paragraph 9 of the judgment wherein the Court has expressed the view that it is desirable for a Court that the demeanour of a witness is observed by the Trial Judge himself. That observation has not been made in the context of a witness beyond the specified limit of 300 miles from the court-houst. to our opinion therefore so far as the question regarding the issuance of commission to examine a witness beyond the specified limit of 300 miles is concerned, this dimension is not at all required to be considered, for, even if it is desirable that the Court should observe the demeanour, if the Court is powerless to compel a witness residing beyond 300 miles to attend the Court to give evidence, the Court cannot refuse to issue a commission.
7. Strong reliance was however placed by counsel for the opponent on the observations made in Dhanbai Burjorji Cooper v. Bablibai Shahpurji Sorabji 36 Bombay Law Reporter, 272. The question which arose before the Division Bench was as to whether the order refusing to issue commission was a judgment within the meaning of Clause 15 of the Letters Patent. The Division Bench, with respect to it, rightly came to the conclusion that it was not a 'judgment' for the purposes of Clause 15. That was the only question which directly arose before the Division Bench. The ratio of that decision cannot therefore be construed as laying down the law in regard to the controversy before us in the context of the provisions contained in Order 16 Rule 19 and Order 26 Rule 4 of the Code of Civil Procedure. It is no doubt true that therein a passing observation has been made disapproving the view taken by Wallace J. in Jagannatha Sastry v. Sarathambal Ammal and Ors. A.I.R. 1923 Madras 321 : I.L.R. 46 Madras 574. However, this observation does not constitute the ratio of the said decision inasmuch as the pertinent question in this behalf was never directly placed in focus before the Division Bench. Besides the attention of the Division Bench was not called to the provisions contained in Order 16 Rule 19 and the resultant situation, to wit, the powerlessness of the Court to issue a summons for attendance to a witness residing at a place beyond the specified distance from the court-house. Under the circumstances, a passing observation made by the Division Bench cannot be construed as laying down the law on the subject. Again, to make a different approach all that the Division Bench has said is that it is not a 'statutory' right. This observation cannot be elastically understood as laying down the law that even if the request for issuance of commission is made in good faith, and the evidence is relevant and material, the Court has a discretion to say 'aye' or 'nay', at its pleasure. To do so would be to invest the Judge with the power to deny justice to the litigant and to do injustice. It would be non-reason to do so for the Court has widest powers to do justice but none to promote injustice.
8. It is our clear and firm Opinion, therefore, that D.P. Desai J. was right (saying so with respect) in the view expressed by him, namely, that a party to a suit has a right to claim issuance of a commission to examine a witness if he resides at a distance of more than 300 miles unless it is shown that the application is mala fide or constitutes misuse of the process of law or unless the witness is under the control of the party. We also take the view that the provision for issuance of commission will not avail to a litigant himself for his examination on commission at his own instance merely because he resides at a distance of more than 300 miles unless it can be shown that on account of any physical or other disability he is not able to attend the court-house and the Court considers it expedient in the interests of justice to issue commission for examination. We accordingly answer the reference in the aforesaid terms.
9. Turning now to the facts of the present case it appears that the learned Trial Judge rejected the application for issuance of commission without applying his mind to the relevant considerations, as his vision was eclipsed by his belief that the defendants were adopting delaying tactics though there was no factual warrant for approaching the question with such bias. As pointed out by D.P. Desai J. the delay was occasioned by reason of the fact that the learned Trial Judge could not decide the short application for about nine months. The impugned order passed by the learned Second Joint Civil Judge (Senior Division) Surat, on October 23, 1972, must therefore be set aside. The matter will now go back to the learned Judge for fresh decision in accordance with law in the light of the principles which emerge from the foregoing discussion. It will be open to the parties to file necessary affidavits or adduce other evidence in order to make good their respective contentions. Rule made absolute of Civil Revision Application No. 1427 of 1972 to the aforesaid extent. There will be no order regarding costs.