1. This is an application to revise the order of the Subordinate Judge of Ramnad at Madura allowing a commission to issue for the examination of Defendants 3 and 4 in O. S. 41 of 1926 on his file. This suit was brought by the plaintiff, one S. Sreenivasa Iyyangar against these three defendants and others including the alleged adopted son of one Alaga Ayyangar, the 1st defendant being the widow of the said Alaga Iyengar, aged 35, the 3rd defendant, the mother of the said Alaga Iyengar aged 70, and the 4th defendant, the maternal aunt of the deceased Alaga Iyengar, aged 55. Now the suit is one for a declaration that a certain alleged will left by Alaga Iyyengar and the adoption of the 2nd defendant said to have been made by him or to him were invalid and had been brought about by the fraud of various persons, among them Defendants 1, 3 and 4. The learned District Jude on the application of the 2nd defendant has allowed a commission to issue for the examination of these female defendants on the grounds as to the 1st defendant that she was a widow 15 months old (that would be now 18 months ago) and that although seclusion is observed in the ordinary course for a year stilt she would feel disinclined to appear in public and therefore that feeling should be respected. In regard to the other ladies he finds they are old. Now the plaintiff in his counter-affidavit asserts that all these 3 ladies have been accustomed to be seen in public for some little time past and that the two elder ladies are not only not infirm but are apparently unusually active in their habits and customs. Now the issue of a commission for the examination of witnesses and parties is governed by Section 132, Civil Procedure Code and Order 26, Rule 1.
2. As to Section 132 that relates to the 1st defendant. Women who according to the custom and manner of the country ought not to be compelled to appear in public are to be exempted from appearing in Court. Now the learned Judge has to my mind not held and had no materials for holding that it is a custom or manner of the country that a widow should remain in seclusion for more than one year from her husband's death. In regard to Order 26, Rule 1 the Court must be satisfied that these ladies, Defendants 3 and 4, were unable from sickness or infirmity to attend the Court. The Subordinate Judge has simply found that they are old and has apparently attached no weight to the allegations in the counteraffidavit. To my mind this is insufficient to comply with Rule 1 of Order 26. The Subordinate Judge has therefore misdirected himself on a point of law. Now the question is, is this a matter in which this Court ought to interfere in revision? As generally happens in these cases authorities can be cited either way but there is the authority of a Bench of this Court in Desika Gnana Samanda Pandara Sannithi Somasundaram Chettiar v. Manicka Vasika  31 Mad. 60 of Wallis and Miller, JJ., to the effect that an order for the examination of a witness on commission can only be made on the grounds in the Civil Procedure Code and when such orders are issued otherwise than on these grounds it is a proceeding without jurisdiction. Now that is the decision of the Bench which appears to me binding on me.
3. It is said that this is an interlocutory order and that I ought not to interfere with it following my own ruling among others in Ramakrishna Pillai v. Krishnaswami Pillai A. I. R. 1922 Mad. 321 I am and always shall be loath to interfere in a matter of an interlocutory order but I have to see whether as I laid down in that case the order of the Subordinate Judge is perverse or the petitioner has suffered some irreparable injury if the order is carried out. The order of the learned Subordinate Judge, as I have shown, is not in accordance with the law and to my mind he has not directed his attention sufficiently to the provisions of law; whether one should go further and say that it is on that ground really perverse I am not quite sure; but I think that consistently with my own previous judgment I can decide this case on the ground that irreparable wrong will be done to the petitioner in this case if these ladies are allowed to be examined on commission on the grounds which have found favour with the Subordinate Judge. It has been laid down again and again that one should be very careful before permitting the issue of a commission which will deprive the other side of the great advantage of having a witness cross-examined before the face of the Court itself. It has been pointed out by Mr. Justice Mukerjee in Panchkari v. Panchanan : AIR1924Cal971 in which he quotes from Berdan v. Green Wood  20 Ch. D. 764 N. and he points out that the question really is whether the Court can be said to have acted with jurisdiction in taking away from a litigant the rights which he undoubtedly has, under the law, of having a witness brought before the Court in accordance with the normal procedure.
4. In Panachand Chotalal v. Mancharlal Nandal  42 Bom. 136 the learned Judges said that it is very important not to relax the rule laid down in the Code or to encourage the notion that parties to a suit can win their case without going into the witness box to support it when they are able to do so and the Privy Council in Satish Chandra Chatterjee v. Kumar Satish Kantha Roy A. I. R. 1923 P. C. 73 per Lord Atkinson said: Evidence taken on commission could only be permitted to be used where the witness is proved to be too ill to give his evidence in Court or is absent for sufficient reason. They also point out that where a witness is examined on commission the Court has no opportunity of judging of the veracity of the witness or his conduct and demeanour and that all the advantage of confronting a witness accused of fraud with his accusers is lost. Now this is really a case of alleged fraud and it seems to me that the plaintiff will be very seriously handicapped if he is to forgo on inadequate grounds the advantage of cross-examining these witnesses who are also parties and who are alleged to have brought about the will and the adoption. For the reasons stated, I am therefore of opinion that nocommission should issue in respect of the younger ladies, namely Defendants 1 and 4, and if they have any real objection to appear in open Court no doubt, the Subordinate Judge, will make arrangements to have them examined in chambers. With regard to the old lady, Defendant No. 3, she has certainly not been found to be infirm but there is some allegation that it may be dangerous for her to undertake the journey to Court. It is really not so much that I am seriously apprehensive about it but that it is possible that she' would find some considerable inconvenience in moving. The Subordinate Judge if he is satisfied that the 3rd defendant is really infirm, as well as old; may issue a commission to examine her. With this exception I think the order of the learned Subordinate Judge cannot stand. For the reasons I have stated, the Civil Revision Petition must be allowed with costs.
5. C. M. P. 4017 of 1926 is dismissed.