1. This is a civil revision petition against the order of the Subordinate Judge of Tiruchirapalli imposing certain terms to be fulfilled by an applicant who prayed for the issue of a commission in examine certain witnesses in Calcutta. The case has been directed to be posted before a Bench by reason of certain conflicting decisions of this Court on the powers of the Court under Order 26, Rule 15, Civil P. C.
2. The first defendant is the petitioner in this Court. The plaintiff respondent filed a suit for the recovery of about Rs. 300 alleged to be due for shortage of goods supplied by the first defendant company. The defence was that there was no default on the part of the first defendant and that all the goods for which the plaintiff had paid were loaded in the wagons of the railway company. To prove that they had fulfilled their obligations under the contract, the first defendant company filed an application for the examination of four persons on commission at Calcutta, through the Court of Small Causes, Calcutta. As the witnesses were residents of Calcutta and as Calcutta was admittedly more than 200 miles from Tiruchirapalli, the first defendant had a 'prima facie' right to have an order made for such examination. This application was opposed by the plaintiff on the ground that the witnesses being officers of the first defendant could have been brought over to Tiruchirapalli for examination. The respondent also prayed that as the expenses to be incurred on commission were disproportionate to the amount of his claim, it was a proper case in which the applicant praying for the issue of a commission should bear the cost of the commission in any event.
3. The learned Subordinate Judge considered that "as the witnesses reside beyond 200 miles the petitioner is entitled to ask for a commission to examine them." He further directed the first defendant (the applicant) to "deposit a sum of Rs. 450, i. e., Rs. 300 being the IInd class fare to and fro and daily allowance of Rs. 15 per day for the Commissioner's journey and stay at Calcutta plus Rs. 150 being his commission fee," and a further sum of Rs. 100 being "a portion of the expenses that the plaintiff may have to incur to go to Calcutta with his advocate to cross-examine the petitioner's witnesses." The order also directed that the entire commission expenses of Rs. 550 would be borne by the first defendant irrespective of the result of the suit.
4. Two points have been raised by--learned counsel for the petitioner in this civil revision petition. The first is that the Court below had no jurisdiction under Order 26, Rule 15, Civil P. C., to direct the petitioner to deposit Rs. 100 for the expenses of the plaintiff and the second, that the Court below unnecessarily mounted up costs by asking the Commissioner to proceed from Tiruchirapalli to Calcutta whereas the Eurpose would have been served much more cheaply by the appointment of a practitioner at Calcutta as commissioner through the Court of Small Causes at Calcutta.
5. On the first point there is a conflict of authority which has necessitated this petition being heard by a Bench. The relevant statutory provisions on this point are these : Section 75, Civil P. C., empowers a Court "subject to such conditions and limitations as may be prescribed" to issue a commission "(a) to examine any person." Order 26, C. P. C., prescribes the conditions and limitations referred to in this section. Order 26 Rule 1 to 4 deal with the circum-stances in which such commission might be issued for examination of witnesses and Rule 15 prescribes the conditions which might be imposed upon a party applying for a commission. This runs in these terms :
15 Before issuing, any commission under this order the Court may order such sum (if any) as it things reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance to for whose benefit the commission is issued."
The Court, therefore, has power under this provision to order "such sum as it thinks reasonable for the expenses of the commission" to be paid. The question is what is meant by the expression "expenses of the commission" and whether it includes the expenses which might be incurred by the opposite party for appearing before the Commissioner. The earliest decision of this Court in which this was considered was by Mack J. in Abdurrahiman v. Muhammad Kasam A I R 1949 Mad 490 (A). The defendant in that case had taken out an application for the examination of witnesses on commission. The plaintiff insisted that this should be ordered only on terms on defendant paying him a sum of Rs. 1000 to meet the expenses to he incurred by him in connection with the examination of these witnesses. The Subordinate Judge declined to accede to this request on the ground that it was not a fit case in which such deposit should be ordered. The plaintiff came up in revision to this Court his complaint being that the Subordinate Judge ought to have imposed such a condition and required such a deposit from the defendant before directing the commission to issue. Mack J. dismissed the petition but went on to say:
"The Subordinate Judge was doubtful whether he could order such costs under Order 26 Rule 15, Civil P. C. The 'expenses of the commission' can be made to include expenses of the other parties to the litigation and can in suitable cases be ordered to be deposited by the party at whose instance the commission was taken out."
6. It will be seen that this opinion was purely obiter and does not adduce any reasons for the conclusion reached.
7. The decision of Mack J. was considered by Govinda Menon J. in Saboora Bivi Ammal v. Julaika Bivi Ammal, (B), where the point had to be considered directly. The Subordinate Judge of Kumbakonam understanding the expression the expenses of the commission" in Order 26 Rule 15 of the Code to include the expenses to be defrayed by the opposite parties made an order directing the applicant for the commission to deposit into Court not merely what in strictness would be the expenses of the commission but also the expenses of the opposite party. The matter was brought up n revision to this Court and Govinda Menon J. allowed the petition observing:
"There is no direct authority on the point except the observation of my learned brother, Mack. J. in A I R 1949 Mad 490 (A) the learned Judge observes that: 'The expenses of the commission can be made to include expenses of the other parties to the litigation and can in suitable cases be ordered to be deposited by the party of whose instance the commission was taken out.' It seems to me that this proposition has been very widely stated. The phrase 'expenses of the commission' in ordinary parlance would mean only what the commissioner has to spend for summoning witnesses and for other incidental expenses relating to the examination of the witnesses before him. No authority has been placed before me where the words have been construed in such wide terms. Moreover the Civil Rules of Practice (Rule 82) does not contemplate any such thing .... If one of the parties desires to travel luxuriously by air or in the first class on board a ship, it cannot be said that such a thing can be included as expenses of the commission, in the absence of any direct authority. I am not inclined to hold that the word 'expenses' would mean that."
8. These are the only reported decisions of this Court. But there are two unreported decisions. One is by Balakrishna Aiyar J. in CRP No 303 of 1954 (Mad) (C) where the learned Judge expressed his agreement with the view taken by Govinda Menon J. The decisions of other High Courts to which re erence will be made presently were all placed before the learned Judge and he expressed his concurrence with the decision of a Bench of the Bombay High Court in Kanji Karsondas v. Nathubhai Khimji (D) in which the same view as that taken by Govinda Monon J., was adopted. On this reasoning, the learned Judge set aside the order of the lower Court which had directed the deposit of Rs. 250 as a condition for the issue of a commission this sum including the expenses of the opposite party. The other decision is by Ramaswami J. in Sriniwasatu Naicker, In re, (S) (E), where the
learned Judge held that on grounds of justice, equity and good conscience a Court should be deemed to have power to direct such payment under Section 151, Civil P, C., in order to equalise the position of rich and poor parties in litigations. So far as the other High Courts are concerned the position stands thus In Sarat Kumar Ray v. Ram Chandra, A I R 1922 Cal. 42 (F), an order for the issue of a commission was refused by the lower Court but was allowed by the learned Judges of the Calcutta High Court on condition of the applicant depositing Rs. 1000 to meet the expenses of the opposite party. Then is no discussion, of the terms of Order 26, Rule 15 and the decision was based on the ground that the applicant for the commission had no right to it but was granted a special indulgence on certain terms. The next case to be referred to is the decision also of the Calcutta High Court in Nripendra Bhusan v. Raja Pramatha Rhusan, A I R 1927 Cal 907 (G). It arose out of an application for the issue of a commission for local investigation and the order which the High Court had to consider was the one by the Subordinate Judge which directed that if the defendant wanted a local enquiry he must deposit the amount of the claim, that is, the claim in the suit, and the first plaintiff would be able to withdraw three-fourth of it before decree. The order was taken in revision but the revision was dismissed on the ground that Order 26, Rule 15 was not exhaustive and that it did not stand in the way of the Court making any terms that it chose to impose as a condition precedent to the granting of the prayer for local investigation. This case therefore does not help us in construing the expression "expenses of the commission" in Order 26, Rule 15. The next decision to be noticed is of the Patna High Court in Ghanshyamdas v. Kishturibala Debi, AIR 1936 Pat 33 (II). The order of the Court below directed the defendant to pay to the plaintiff Rs. 200 as costs in attending to the commission and this was sustained on the ground that in an earlier unreported decision an order in similar terms was held not to be illegal. The matter has been considered fully in a recent judgment of the Bombay High Court in (D), where after discussing all the
earlier decisions of the several High Courts it was held that the expression the "expenses of the commission" could not include an opponent's pleader's fees or the costs which the opponent might have to incur to go to the place where the Commissioner, was going to examine the witnesses and that the expression denoted only fees to be paid to the commissioner and other expenses directly incidental to the issue and execution of the commission. Having considered the matter ourselves we respectfully concur in the opinion of the learned Judges of the Bombay High Court. We consider that the views taken by Mack J., and Ramaswami J., in the cases referred to above are incorrect and that Govinda Menon J., and Balkrishna Aiyar J., were right in their construction of Order 20, Rule 15 and the powers of the Courts under that provision.
9. We have only to add that it is settled law that where there is an express provision in the Code setting out the conditions that might be imposed it would not be open to any Court to resort to its inherent powers in order to enlarge its powers or get over the statutory limitations. We are there-fore clearly of the opinion (a) that the expression 'expenses of the commission' in Order 26, Rule 15, Civil P. C., does not include expenses of the opposite party and (b) that the Court has no inherent power to travel outside Order 26, Rule 15, Civil P. C., and impose conditions not warranted by that or any other specific statutory provisions in that regard. To pass an order in the terms as the Court below has done would really be tantamount to passing an interim decree for costs which cannot be sustained under any provision of the Code. In this view the order of the Court below directing the petitioner to deposit Rs. 100 for defraying the respondent's expenses of the commission is without jurisdiction and is set aside.
10. The question that remains is as regards the necessity for an advocate-commissioner going all the way from Tiruchirapalli to Calcutta in order to record the evidence of four witnesses. We consider this as absolutely unnecessary and a waste of money. The same purpose could be achieved by a letter of request to the Small Causes Court at Calcutta to appoint an advocate of Calcutta as commissioner and have the witnesses examined. The Subordinate Judge will in the light of these considerations determine the reasonable expenses of the commission and pass orders accordingly.
11. Only one thing more remains to be mentioned and that is that no objection could be taken to the order of the Court below directing the costs of the commission to borne by the petitioner in any event. That was certainly within the jurisdiction of Court and it is not open to objection.
12. The civil revision petition is accordingly allowed and the Court below will dispose of the application for the issue of a commission in the light of our observations contained above. There will be no order as to costs in the civil revision petition.