1. This is a civil revision petition under Section 115, C. P. C. to revise the order of the learned City Civil Judge(Vth Assistant) Madras, directing the issue of a letter of request to the Chief Judge, Court of Small Causes at Bombay, to appoint a Commissioner to examine a witness.
2. The first defendant in the suit, 0. S. No. 2280 of 1957, on the file of the City Civil Court, Madras, which is a private limited company, applied for the issue of a commission under Order 26 Rule 4, C. P. C. to have the evidence of its manager recorded by a Commissioner at Bombay. The suit relates to an insurance claim by the plaintiff against the several defendants in the suit, me 2nd defendant is the Insurance Company of which the first defendant is alleged to be the agent settling the insurance claims. The third defendant is the shipping company owning the steamer S. S. 'Astra' which carried the goods from Naples to Madras, in respect o! which the suit claim is launched. The 4th defendant if the Port Trust at Madras. The first defendant is carrying on business at Bombay, having its registered head office in that place. The application by the first defendant was resisted by the plaintiffs, the third defendant and the fourth defendant. The learned City Civil Judge overruling the objections to the application, directed the issue of the commission as prayed for by the first defendant. Hence, this civil revision petition has been preferred by the plaintiff in the suit.
3. The grounds on which the issue of commission was sought by the first defendant can best be stated in the words of the affidavit filed on behalf of the first defendant in the court below:
'2. I state that the applicant company is not resident in Madras State and none of the directors or officers of the applicant company carries on business within the Madras State.
3. I state that the attendance of any director or officer of the applicant in Madras for the purposes of giving evidence before this Hon'ble court will cause considerable inconvenience and expense as the applicant company is 800 miles away from Madras City.
4. I state that my evidence is necessary on behalf of the applicant company to deny the untrue averments made by the plaintiff and I, therefore, state that if it necessary to examine me on commission at Bombay as I am aware of the facts of the case'. The plaintiffs contended that they would be put to considerable expenses if a commission were to issue and that in any event if the first defendant were to obtain an order in its favour it must be made to bear their expenses of the commission as well. The objections on the part of the third and the fourth defendants were the same as the objections put forward by the plaintiffs. The learned City Civil Judge took into account only the alleged inconvenience and the expense to which the first defendant stated it would be subjected to if no commission were to issue, and passed an order in its favour.
4. The principles that should govern the Court In issuing commission to have the evidence of a witness or party recorded are now well settled. The relevant provisions of the Civil Procedure Code are as follows:
Order V Rule 4:
'No party shall be ordered to appear in person unless he resides -- (a) within the local limits of the Court's ordinary original jurisdiction, or (0) without such limits but at a place less than fifty or (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 theplace where the Court is situate) less than two hundred miles distance from the court-house.'
Order 26 Rule 1 : 'Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the court or who is from sickness or infirmity unable to attend it.'
Order 26 Rule 4:
'(1) Any court may in any suit Issue a commission for the examination of -- (a) any person resident beyond the local limits of its jurisdiction; (b) any person who is about to leave such limits before the date on which he is required to be examined in court; and (c) any person in the service of the Government who cannot in the opinion of the court, attend without detriment to the public service.
(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the court issuing the commission may appoint.
(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.'
5. The witness, who is a third party to the action cannot be compelled to attend court to give evidence if he is resident at a place beyond 200 miles away from the court house, a party to a suit or proceeding has no such unqualified right. The plaintiff, having filed the suit in a forum of his choice or in a forum where the suit had necessarily to be instituted cannot, except in circumstances of bodily infirmity or other disabling factors, avoid giving evidence in court. A defendant, however, is in a slightly better position. If he is a resident in a far off place, quite a long way from the jurisdiction of the Court, he can pray for the issue to a commission to examine him as a witness, in Ross v. Woodford, 1894 1 Ch. 38 Chitty J. observed,
'When it is the defendant's application, and particularly that of a defendant lawfully resident out of the jurisdiction, according to the ordinary course of his life and business; and to compel these defendants to come over here, at great expense to attend the trial, or give up their case, would be oppressive and unfair, and in my opinion it would be wrong to apply to the case of a defendant the principles that are applicable to the case of a plaintiff asking for a commission to examine himselt.'
This decision is now 68 years old, and conditions of life have undergone a radical change. Transport facilities are not now confined to the terra firma, land and water, but have extended to the air medium. What was oppressive and unfair in the days of Justice Chitty due to the place of residence of the defendant being miles and miles away from the court house may not be so, in the present day. In Mohamed Zackaria v. Abdu! Karim Rowther, : (1956)2MLJ371 , Panchapakesa Aiyar J. had occasion to consider the question whether a commission should issue to Singapore for the examination of a witness. The learned Judge holding that a commission need not issue, observed thus:
'Mr. Naidu for the plaintiff respondent, urged that Singapore has now become only one day distant from India, because of the magnificent constellation service of AIR India International and other air services operating. The days of buffalo carts and bullock carts have gone, and the whole world has become one now, any part of which can be reached within a week at the maximum. Singapore appeared to be fabulously distant to our ancestors, like Benares, but has now become easily accessible, and can indeed, be reached in a lesser time than many interior village in India itself. In a case like this, it will be of the greatest help to the Court to see the defenuam and observe his demeanour when he gives evidence. . .'
However valuable old judicial precedents may be, a blind and devotional adherence to them without proper adaptation to the present realities of living conditions may lead to miscarriage of justice. The mere fact that the first defendant has got its place of business at Bombay and that the witness sought to be examined is a resident of Bombay cannot, therefore, by itself entitle the applicant to have the commission issued.
6. The general rule is, and this should not be lost sight of or blurred, that the evidence of a witness in an action, be he or she be a party or not, should be given in public court and tested by cross-examination, inability to attend court on grounds of sickness or infirmity, or detriment to the public service would justify the issue of a commission. The Court has got a discretion to relax the rule of attendance in court where the person sought to be examined as witness resides beyond the local limits of the jurisdiction of the Court. This discretion may be exercised even if the person happens to be no other than the defendant (see Subramania Chettiar, in re, : AIR1955Mad210 . There can, of course be no rule of law demarcating the boundaries and the area of the discretion to be exercised in these matters. What can however be stated is that the Court of Nisiprius must act judicially having regard to all the circumstances ot the case, the desirability of the physical presence of the witness in court to enable it to observe his or her demeanour, and the not unusual fact that convenience and economy of expenses for the applicant may involve his opponent in great inconvenience and considerable expenses.
7. Now, the question is whether the first defendant has made out a case for the issue of a commission. It is said that the first defendant company will suffer inconvenience and will be put to expenses if any director or officer were to proceed to Madras from Bombay to give evidence. The learned City Civil Judge has accepted this as a good ground for an order for commission in its favour. The plaintiff, the third and the fourth defendants pleaded that they will be put to serious inconvenience and large expenses to arrange for the cross-examination, of the witness at Bombay. This plea on their part deserves to be taken note of, and I do not think that the Court below bestowed any serious thought over it. Here is a defendant in a suit at Madras, who says 'I am a resident of Bombay. I should not be troubled to go to Madras and be put to expenses; let me give evidence from where I am.' It seems to me that a party to the suit cannot avoid going to the court on such flimsy grounds, 'inconvenience' and 'expense' are inevitable components of every law suit, and both sides have a full measure of them. No party can gain an advantage over his adversary to suit his own convenience. I am leaving out and excluding consideration of illness, infirmity or other matters beyond one's control, which sufficiently deter and prevent a person from giving evidence in court.
8. The learned City Civil Judge has directed the issue of a commission on the mere pretext of inconvenience and expense of the first defendant, which is woefully inadequate to sustain an application under Order 26 Rule 4 C. P. C. The order of the Court below is vitiateby material irregularity and illegality in the exercise of its jurisdiction.
9. The petition succeeds. The order of the Court below is set aside and I. A. No. 877 of 1960 oh the file of the Fifth Assistant City Civil Judge, Madras is hereby dismissed. There will be no order as to costs either here of in the Court below.