1. The plaintiff-respondent in this petition filed a suit; against the petitioner to recover a sum of money as commission under the usual Nattukottai Ghetti custom. The petitioner was the respondent's agent at Thaiping in the Malay States. The plaint alleged that on 14th December 1929 the petitioner agreed to go out as agent for another term to the said Thaiping, that in respect of the aforesaid commission he agreed to return 750 rings with interest, and that if he broke the contract and defaulted to go out as agent he should return another 725 rings. But the petitioner defaulted to go out as agent. Consequently the suit was laid for the-value of 750 rings with interest. The defendant stated that the breach of the contract was on the plaintiff's side and counter-claimed damages assessed at the difference between the pay which he had to accept under another principal and the pay which he would have-received from the plaintiff. The suit was filed on 26th August 1931 four days before the defendant left for Thaiping which, it is not disputed, is his usual place of residence. The defendant applied to be examined on commission which the lower Court refused. Against this order the present revision petition is filed. The order of the Court is very brief and the material portion runs as follows:
The petitioner is the defendant in the suit and he has also filed a counter claim against the plaintiff. It is very essential that he should be examined in Court as the question involved is whether there was a breach of contract on his part. Under these circumstances I do not think his evidence can be allowed to be taken on commission. Petition dismissed.
2. The ground taken in revision is that the lower Court has failed to observe the distinction between an application by a plaintiff to be examined on commission and an application by a defendant. The two grounds which induced the lower Court to refuse the commission appear to be (1) that it was necessary to observe the defendant's demeanour in Court, and (2) that the defendant has filed a set off. It has to be observed that there has been no allegation or finding that the application was not made bona fide. As regards the English oases the leading case is Ross v. Woodford (1894) 1 Ch. 38. This was followed in Viswanatha Chetty v. Somasundaram Chetty A.I.R. 1924 Mad. 541, in revision (a decision of a single Judge) in Elvers v. American Motor Co. A.I.B. 1924 Lah. 475, and in Sarat Kumar Ray v. Ramchandra A.I.R. 1922 Cal. 42, while the converse case where permission to examine the plaintiff on commission is allowed is discussed in Muhammad Akbar Ali v. Herbert Francis A.I.R. 1925 Pat. 125. From these oases it would appear that the mere advantage of observing the defendant's demeanour in the box is not a sufficient reason for refusing a commission and that the failure to distinguish between applications of the plaintiff and of the defendant in such a matter is an irregular exercise of jurisdiction in which the High Court can interfere in revision. As regards the set off there is one English case quoted before me, Harmont v. Dalay (1896) 12 T.L.R. 170, where the fact that a set off was claimed was held to be no good reason for refusing commission do not wish to discuss here (as I understand it is going to be raised in the suit) the question whether the parties fill the same capacity so as to enable the counter claim to be entertained in this suit. Nor doss any delay appear to be material in refusing the issue of a commission to examine the defendant: vide Vidyapurna v. Sitamma (1911) 12 I.C. 74, where, after the plaintiff's case was closed, an application was made on behalf of the defendant.
3. On behalf of the counter-petitioner are quoted two oases Nowji v. Memchand (1899) 23 Bom. 626 and Veerabhadran Chetty v. Nataraja Desikar (1901) 28 Mad. 28. In the first of these cases the plaintiff had applied for letters of administration and the defendants filed caveats setting up a will. The will so set up was not forthcoming, each caveator alleging that it was in the possession of the other and producing only a copy of it. The learned Judge refused to issue a commission quoting certain remarks, in In re Boyse Grofton v. Grofton (1882) 20 Ch. D. 764 where it was said by Baggallay, L.J.
In considering whether the examination of a witness should be taken by commission, we must have regard at any rate, to the possibility of his not being a credible witness. If the witness is a credible witness, it is hardly material whether he given his evidence viva voce in Court or before a commission or by affidavit or in any other form. But we must assume the possibility of his not being a credible witness, and then it becomes of the most extreme importance that the jury or the Court which has to decide the question, should have the opportunity of seeing the demeancur of the witness and observing the way in which the various questions which are put to him in cross-examination are answered.
4. In the same case Cotton, L.J., said:
But we ought to consider not merely what the plaintiff's case requires but what justice to the defendant as well as to the plaintiff requires. And in such a case as this, it is in my opinion eminently important that the demeanour of the witness should be seen and his precise answers to the questions put to him should be heard by. the Judge, or the Judge and jury, who have to decide the case, and that the defendants should have the fullest opportunity of cross-examining him they being really only able to do that effectually when the witness is in Court and his demeanour and the way in which he answers the question can be judged by the Judge and by the jury.
5. (This later quotation shows that the application in that case was made by plaintiff.) The learned Judge in Mowji v. Nemchand (1899) 23 Bom. 626 held:
Taking into account the case of the plaintiff and also that of the defendants, taking into account the fact that the will itself is not forthcoming and that the copies which are alleged to exist do not agree with each other, and taking into account the fact that these witnesses will not give their evidence nor be cross-examined viva voce, taking also into account the fact that two of the witnesses now sought to be examined on commission have recently been in Bombay and only went away on last Saturday morning so that it is evident that, if the applicant had been so minded, he might have had them examined here de benecsse last week; also taking into account that it is not clear on the affidavits that it will be impossible to get the witnesses to come to Bombay for the trial or, that the applicant may not be able to examine some of them de bene cese in the meantime if they should visit Bombay and applying to these facts the principles laid down in the case I have already cited, I have come to the conclusion that it is not in the interests of justice that these witnesses should be examined in the way it is proposed, and that using a judioial discretion, it is my duty to refuse to grant the commission asked for.
6. The facts stated above by the learned Judge show that the application was not made bona fide, that it was not impossible to get the witnesses to the Court to give evidence, nor would it involve any serious hardship to the witnesses concerned. The second case, Veerabhadran Chetty v. Nataraja Desikar (1901) 28 Mad. 28 no doubt lays down the principle that the English procedure on the points was JQO guide for the proceedings of the Court under the Civil Procedure Code. But the ultimate decision in that case was based on the question of bona fides. Also it was on a totally different matter, the summoning of a defendant who resided within the jurisdiction of the Court which now falls under Order 26, Rule 1. (Both in the head note and in the judgment the matter is stated to fall under Section 386 of the old Code, but it appears to fall under Section 383). In that case the respondent was the head of a mutt and he applied to have his evidence taken on commission stating that he was unable of his own personal knowledge to give any evidence material to the question at issue. He alleged that the appellants were insisting on his appearance in Court to put pressure upon him to relinquish or compromise his claim as it was considered derogatory to a person in his position to appear in Court as a witness. The Subordinate Judge refused to issue a commission. On a revision petition being filed a single Judge of the High Court set aside the order of the Subordinate Judge and ordered the respondent to be examined on commission. On an appeal being preferred, under Article 15, Letters Patent, it was held that the issue of commission for the examination of witnesses by the Courts of this country is governed solely by the provisions of the Civil Procedure Code and that Section 386 (383) is exhaustive and provides for all the cases in which the legislature intended that it should be competent to a Court to issue a commission for the examination of witnesses resident within its jurisdiction. It was further held in this case
that a litigant's privilege of taking oat summons to witnesses is subject to the control of the tribunal which is called upon to enforce their attendance, though such control will be exercised sparingly and only in exceptional cases.... In the present case the appellant's application was not bona fide and the respondent's attendance in Court was required not for the purpose of obtaining material evidence but from other motives, and the order for the issue of a commission was therefore rightly made.
7. It will be seen that in this case the ultimate result was that the commission was allowed to be issued to the defendant, though he resided within the jurisdiction of the Court, on the ground that the application to produce the witness in Court to give evidence was not made bone fide. I fail to see bow this case helps the counter-petitioner at all. In the present case the lower Court does not appear to have kept in mind the distinction between an application by the plaintiff and an application by the defendant and, as there is no question of bona fides involved, I hold that there has been an irregular exercise of jurisdiction. In the result the petition is allowed and a commission will issue by the examination of the defendant. Costs of this petition to abide the result of the suit.