M.L. Joshi, J.
1. This revision petition is directed against the order of the Additional Munsif Bhilwara dated 16th of January, 1975, whereby he refused to issue commission for the examination of the three witnesses residing 200 miles away from the court house and further refused to issue process to the witnesses living within the limits of 200 miles from the court premises and thus closing the evidence of the defendant.
2. The plaintiff commenced an action for eviction of a shop and arrears of rent against the defendant-revision-petitioner alleging that the defendant was the tenant of one Smt. Sharda Devi who sold her right, interest in the said property in favour of the plaintiff by a registered sale-deed which fact was notified by her to the defendant by a written notice. The plaintiff claimed that he required the suit premises for carrying the business as he and his brother were carrying the business in a rented shop.
3. The defendant resisted the plaintiff's claim on various grounds and inter alia alleged that the premises were not required by the plaintiff bona fide and reasonably for carrying the business.
4. On the pleadings of the parties the court in all framed 8 issues. The plaintiff led his evidence in support of the issues the burden of which was placed on him and his evidence on 16-11-1974 reserving his right of rebuttal on the issues the burden of which was placed on the defendant and the case was fixed for the examination of the defendant's witnesses before Commissioner Mr. Nandlal who was directed by the Court to submit the record with his report on 28-11-1974. On 28-11-1974 the Commissioner submitted the record with the report that the defendant's witnesses had refused to depose before him. It may be mentioned here that the defendant had moved an application in the court on 27-11-1974 stating therein that he did not want to examine his witnesses on Commission and prayed that his witnesses be examined by the court. On the next day i. e. on 28-11-1974 the defendant filed a list of five witnesses, namely, (i) Shivprasad of Patna, (ii) Omprakash of Bombay, (iii) Jamna Dhar of Bagchale (Assam), (iv) Makhanlal of Jalore (Gujarat) and Sheo-dayal of Alwar. On 28-11-1974 the case was adjourned to 30th of November, 1974, for necessary orders. On 30th of November, 1974, the plaintiff's Advocate expressed that he had no objection to the defendant's witnesses being examined by the court. Accordingly the court acceded to the defendant's request and fixed 19th, 20th and 21st of December, 1974, for defendant's evidence and directed the defendant to present his witnesses for himself. However, the defendant thereafter submitted process-fee for summoning the witnesses and summons were issued to the witnesses for hearing of 19-12-1974. On 19-12-1974 the presiding officer was having his camp at Mandal-garh but the defendant's witnesses Radheyshyam and Smt. Sharda Devi were absent in spite of service. Sanwarmal was present who was directed to be present on 20th of December, 1974. On 20th of December, 1974, the defendant was partly examined but his statement could not be completed for want of time, The court, however, on that day deprecated the conduct of the Reader in issuing process to the witnesses in the absence of any order to that effect and directed the defendant to bring the witnesses for himself. On 21st of December, 1974, the defendant's statement was completed. The other witnesses of the defendant were not present for which the application for summoning them was submitted by the defendant and the case was fixed for consideration of the application on 23rd December, 1974. On 23rd December, 1974, the court partly allowed the defendant's application for want of objection by the plaintiff's counsel and directed that the process be issued on submission of the process fee on that very day to the witnesses residing within 200 miles from the court house. The trial court further directed the defendant to produce the witnesses residing beyond 200 miles for himself and fixed 15th and 16th of January, 1957, for the defendant's evidence. The defendant failed to file the process on 23rd of January, 1975, but filed the same on 4-1-1975. On 15-1-1975 the witnesses of the defendant were not present but the defendant moved an application for issuing commission for the examination of the witnesses residing beyond 200 miles from the court house and the case was adjourned to 16th of January, 1975. On 16th of January, 1975, the court dismissed the application praying for issue of commission and closed evidence as defendant's witnesses were not present. It is against this order that the defendant has come up in revision before this Court.
5. It has been firstly contended before me that the court erred in refusing commission for the examination of the witnesses who were residing at various places which were at a distance of more than 200 miles from the court house. It was argued that it was incumbent upon the court to have issued the commission for the examination of such witnesses. Reliance was placed on Order 16, Rule 19, Civil Procedure Code and Order 26, Rule 4, Civil Procedure Code. The learned counsel for the defendant urged that Order 16, Rule 19, Civil Procedure Code precludes the court from compelling the attendance of such witnesses before the court and therefore the defendant was entitled as a matter or right to examine such witnesses on commission under Order 26, Rule 4, Civil Procedure Code. In this connection reliance was placed on Jagannatha v. Sarathambal, AIR 1923 Mad 321, Moodavanchu Borraya v. Kasavajjula Ramkoti Sashtri, AIR 1949 Mad 468, Subrahmanyam v. Venkayya, AIR 1963 Andh Pra 429. Mst. Anoora v. Sagarmal, AIR 1963 Pat 213; Union of India v. M/s. Natbar Lal, AIR 1956 Orissa 65, Panchkari Mitra v. Panchanansaha, AIR 1924 Cal 971 and Aswani Kumar v. Anukulchandra, AIR 1950 Cal 326.
6. On the other hand Mr. Pareek on behalf of the non-petitioner contended that issue of commission under Order 26, Rule 4, Civil Procedure Code was in the discretion of the court and it could not be claimed as of right. He relied upon Ramsewak v. Harihar, AIR 1927 Rang 175; P.R. Bizani v. Hanszucker, AIR 1960 Andh Pra 459. Sudhansu Mohan v. Union of India, AIR 1958 Orissa 287; Jaya Shanker Mills v. Hari Zakaria, AIR 1962 Andh Pra 435. Ramkrishna v. F. E. Hardcastle and Co., AIR 1963 Mad 103, In Re Thirupathiamma, AIR 1956 Mad 179; Kather Dutt v. Dist. Magistrate, AIR 1956 All 232 and Mohammed Khan v. Ibrahim, AIR 1958 All 19.
7. I have perused the cases cited by the learned counsel for the petitioner. They are in line with the proposition laid down in Jagnnatha v. Sarathambal, (AIR 1923 Mad 321) wherein it has been held that ordinarily in case of witnesses not under the control of party asking for the examination of the witnesses residing beyond the limit fixed under Order 16, Rule 19 (b) C. P. C, the issue of a commission is a matter of right unless the court is satisfied that the party is merely abusing the authority for getting the commission issued. On the other hand the cases cited by the learned counsel for the non-petitioner proceed on the view that issue of commission is entirely within the discretion of the court which of course has to be exercised in a judicial manner and no party can ask for the issue of commission as a matter of right. It is true that Order 16, Rule 19 (b), Civil Procedure Code precludes the court from compelling the attendance of the witnesses residing more than 200 miles from the court house but merely on that account it cannot be said that the party has a right to examine such witnesses on commission. 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 that 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. It is true that the word 'may' some times has force of 'shall' but looking to the language of Order 26, Rule 4, Civil Procedure Code and the object which it seeks to achieve the word 'may' cannot be read as shall. The reason is obvious. There may be so many factors weighing with the court before issuing a commission. To illustrate the point, suppose the party asks for a commission for the examination of his witnesses at the fag-end of the trial with inordinate delay or with a view to protract the proceedings although the witnesses proposed to be examined on commission are not at all material in the case. Has the party even in such cases a right to examine the witnesses on commission although they be resident of place beyond the limits prescribed under Order 16, Rule 19, Civil Procedure Code That could not have been the intention of the legislature. It appears to me that the legislature had used the word 'may' so as to vest discretion in the court to issue commission for the examination of the witnesses in appropriate cases. It was, however, argued that the word 'may' also appears in Order 26, Rule 1, Civil Procedure Code but there the word 'may' will have force of 'shall' otherwise the very object of Order 26, Rule 1, Civil Procedure Code shall be rendered meaningless. On this analogy it was argued that the word 'may' which occurred in Order 26, Rule 4, Civil Procedure Code should also be construed as having the force of 'shall'. I am not impressed with this argument. According to me even Order 26, Rule 1, Civil Procedure Code if the party is guilty of laches or abuse of the process of the court or if the witnesses are not material the court is not at all helpless and has a discretion in the matter of issuing commission. Even the authorities cited by the learned counsel for the petitioner concede that if the application is mala fide or is made with inordinate delay the court has got discretion in the matter of issue of commission. It therefore cannot be said that the commission can be claimed as of right even for the examination of the witnesses residing beyond 200 miles. Each case has to be examined on its own facts and circumstances involving in it and court has to exercise judicial discretion in considering the application for commission. I need not therefore discuss the authorities cited at the Bar individually.
8. The learned counsel for the petitioner, however, laid stress on the observation of Wanchoo, C. J., as he then was made in Jiwibai v. Laxmichand, ILR (1955) 5 Raj 68 = (AIR 1955 Raj 32) wherein Wanchoo, C. J., while interpreting Order 26, Rule 15, Civil Procedure Code has observed that commission shall be issued as a matter of course to the witnesses residing beyond 200 miles from the court house but these observations do not necessarily imply that court has no discretion to refuse commission in appropriate cases. The correct interpretation of Order 26, Rule 4, Civil Procedure Code in my opinion is that the court has discretion to issue commission under Order 26, Rule 4, Civil Procedure Code and the commission cannot be claimed as a matter of right. The discretion has, however, to be exercised according to well accepted judicial principles.
9. In the light of legal position referred to above I have to examine whether the trial Court had erred in refusing to issue commission for the examination of the three witnesses of the defendant residing beyond 200 miles in this case. As stated above the petitioner's evidence was to be recorded on 27th of November, 1974. He filed the list of witnesses on 28th of November, 1974, and further filed the list of witnesses on 30th of November, 1974, but did not pray for issue of commission to any of the witnesses. On the other hand, the petitioner had moved an application on 27-11-1974 to the effect that he did not want to examine his witnesses on commission and prayed that they be examined in the court. Even on that date, the petitioner did not move for issue of commission. It was only on 15th of January, 1975 that he applied for commission. Even the application praying for commission simply mentioned the names of the witnesses and did not say how the witnesses sought to be examined on commission were material. Further no reason was stated as to why the application was being made with inordinate delay. In this state of affairs it cannot be said that the trial court had exercised the discretion in improper manner in refusing to issue commission for the examination of the aforesaid three witnesses, nO case has been made out for interference of the order refusing the issue of commission.
10. The next contention of the learned counsel for the petitioner is that the court committed material irregularity in refusing to issue process to the witnesses residing within the jurisdiction of the court. I have examined the contention and I am of the opinion that it is not without substance. The date 23rd of December, 1974, was fixed for defendant's evidence. On that day at the request of the defendant the court ordered for issue of process for the attendance of the witnesses for the hearing of 16th of January, 1975. To this, counsel for the plaintiff had no objection. The court, however, directed the filing of the process on that very day. The learned counsel has stated in his revision application that the impugned order was passed at 4.00 P. M. on that day and from 24th December, 1974, to 1st of January, 1975, were winter holidays and it was, therefore, not at all possible for him to carry out the court's order. Be that as it may, one thing is clear that the court did not give reasonable time to the defendant to file the process when it ordered the process to be filed on that very day. The defendant filed process on 2-1-1975 in a wrong court i.e., the court of District Judge and the same was filed on 4th of January 1975, before the trial Court. The case as stated earlier, was fixed on 15th and 16th of January, 1975, the process had been filed on 4-1-1975. The process should not have been refused on the ground that such an application was too late; though it is within the discretion of the court to refuse adjournment of the case on the ground of inaction of the party. The closure of evidence without issuing summons to the defendant's witnesses, although there was ample time available for the defendant to get the process served upon the witnesses who were residing within the jurisdiction of the court in my opinion, is a material irregularity. Once the process has been filed for summoning the witnesses even with delay leaving reasonable time to effect service, an omission to issue process and close the evidence for non-appearance of the witnesses amounts to material irregularity on the part of the trial court. This part of the court's order, therefore, is improper and deserves to be interfered with in revision.
11. In the result, the revision petition is allowed in part. The order regarding refusing to issue commission for the examination of the witnesses residing beyond 200 miles from the court house is maintained. The order regarding refusing to summon the witnesses residing within the limits prescribed under Order 16, Rule 19, Civil Procedure Code and closing the evidence is set aside. The court shall now proceed to issue process to those witnesses for which prayer has been made by the defendant on 23rd of December, 1974. In the facts and circumstances of the case the parties are left to bear their own costs.