1. The learned Counsel for the petitioner has said everything that he can say on behalf of his client, but I am satisfied that this is not a case in which I should interfere with the order of the lower Court.
2. The petition arises out of an application by the defendant in a suit under Order 26, Rules 2 and 4 of the Civil Procedure Code and Section 151 for the issue of a commission to examine a witness in Madras. The suit was filed in the District Munsiff's Court, Devakottah, on a promissory note which had been executed by the defendant and had been endorsed to the plaintiff. The defendant apparently urged that the endorsement in some way or another was not valid and in support of this contention he desired to adduce the evidence of an advocate who has ceased to practice in that Court and is at present employed in Madras. He says that this gentleman was appearing in Court as an advocate in another case, in which the defendant's wife was the plaintiff and in which the endorser of the note appeared as a witness and was about to but somehow did not produce in evidence the promissory note in question. It is said that the date on which this incident occurred was subsequent to the alleged date of the endorsement, the inference being, I suppose, that the date of the endorsement is fictitious.
3. The respondents filed an affidavit saying that it was unnecessary to call this Madras gentleman because in the case referred to, he appeared with another advocate, who is still in Devakottah and who can give, if necessary, the same evidence. The District Munsiff considered these facts and contentions and held that it was unnecessary to take the evidence of the Madras gentleman, not only because the other advocate is still available if required but that the defendant was not without other means of proving this particular fact, if he so desired and the District Munsiff pointed out these other means in his order. Furthermore, he came to the conclusion that the application was a vexatious one, that is to say, that it was an abuse of the process of Court and was filed only with a view to protract the litigation. On the facts this conclusion would not seem to be out of the way.
4. Two cases have been cited to me in support of the contention that a party has an absolute right to an order for the issue of a commission to take evidence. The first was Jagannath Sastri v. Sarathambal Ammal (1922) 44 M.L.J. 202 : I.L.R. 46 Mad. 574, a decision of Wallace, J. There the learned Judge held that a commission should issue as a matter of right unless the Court is satisfied that the application is an abuse of the process of Court. On the finding, therefore, of the District Munsiff that this particular application was an abuse of the process of.Court this case does not support the petitioner's argument. With great respect to the learned Judge, I would not go so far as he with regard to the principles applicable to the issue of commissions. In my opinion, it is a matter of discretion for the Court in the circumstances of each particular case.
5. The other case cited Sitamma v. Subraya : (1911)21MLJ889 is however a Bench decision and the head note reads:
A party to a suit has a right to the issue of a commission apart from the question whether he would be ultimately benefited by it.
6. An examination, however of this judgment, shows that it is one on the particular facts of that case and I do not read it as laying down the principle that the application for the issue of a commission must succeed without the Court's considering the circumstances of the case; and amongst those circumstances must, in my opinion, be included the question whether that evidence cannot be adduced save through the particular witness mentioned in the application. I think it must be necessary for the applicant to show that, unless a commission issues to take the evidence of the person desired, it will be impossible to place the necessary and relevant facts before the Court in support of his case.
7. In my opinion, the learned District Munsiff has correctly appreciated the principles involved and this petition must be dismissed with costs.