T. Ramaprasada Rao, J.
1. The petitioner is the defendant in the lower Court. He filed an application under Order 26, Rules 3 and 4 of the Code of Civil Procedure praying for the issue of a commission to examine three witnesses said to be residing in Burma and over whom he has no control. Several contentions were raised by the defendant against the suit claim. I am not at present dealing with the same. The application was, however, opposed by the respondent-plaintiff on the ground that the discretion of Court ought not to be exercised in favour of the petitioner as the application is merely a ruse to protract the trial of the suit. The learned District Munsif dismissed the application mainly on the ground that he has the discretion to issue a commission having regard to the inconvenience and hardship that it will enure to the other side. As against this order, the present revision petition is filed.
2. The learned District Munsif in the opening portion of the effective part of his judgment states that under Order 26, Rule 4, Civil Procedure Code the Court has discretion to permit or refuse a party to examine witnesses on commission and Order 16, Rule 19, does not take away such discretionary power of the Court. This observation of the learned District Munsif is the main subject-matter of attack before this Court.
3. The learned District Munsif, in order to sustain his observation as above, relies upon two decisions of this Court, namely, Ramakrishna Kulwant Rai v. Hardcastle & Co. I.L.R. (1938) All. 486 and Muhammad Zackria v. Abdul Karim : (1962)2MLJ490 . Though he referred to the decision of Wallace, J., in Jagannatha Sastri v. Sarathambal Ammal : (1956)2MLJ371 , he apparently chose not to follow it. The point for determination is whether a party to a lis has a right to ask for the issue of a commission for examination of witnesses beyond the jurisdiction of Courts where the suit is pending, and particularly witnesses outside India. In the instant case, the petitioner wanted to examine witnesses residing in Burma. It is not seriously contended that such witnesses are not under the control of the petitioner. Order 26, Rule 5, Civil Procedure Code, appears to govern the point in issue. In fact, the application has been made both under Order 26, Rule 4 and Order 26, Rule 5. Order 26, Rule 4 and Order 26, Rule 5 may be usefully extracted:
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. Where any Court to which application is made for the issue of a commission for the examination of a person residing at any place not within (India) is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.
The language employed in both the rules are mostly similar. Prima facie, the Court appears to have a discretion in the matter of the issue of commission, since the word 'may' appears in both the rules. It is one of the canons of interpretation that in certain compelling circumstances 'may' can be interpreted to mean 'shall'. In Jagannatha Sastry v. Sarathambal Ammal : AIR1923Mad321 , Wallace, J., observed that the word 'may' in Order 26, Rules 1 and 4 means 'Is given authority to ', and it was held that the Court in fact has no discretion to reduce a commission for examination of witnesses in cases falling under the above rules. Whatever may be said against the issue of commission for the examination of a party to a suit on commission, to which aspect I will advert later, it appears to be well-settled now that the matter is not one of discretion, but it is in the nature of a statutory right to the litigant. In Sitamma v. Subraya : (1911)21MLJ889 , a Bench of this Court took the view that such a commission ought to issue as of right irrespective of the anticipated benefit or otherwise to the applicant by such issue. Wallace, J., after referring to the above decision, laid down as it were a formula in Jagannatha Sastry v. Sarathambal Ammal : AIR1923Mad321 , which reads as under (at page 205):
The balance of authority is in favour of the view that (1) ordinarily, in the case of a witness not under the control of the party asking for the commission, who resides beyond the limit fixed under Order 16, Rule 19(b), Civil Procedure Code, a commission should issue as a matter of right, unless the Court is satisfied that a party is merely abusing its authority to issue process, and (2) that it is not for the Court to decide whether the party Will be benefited thereby or not; that is a matter entirely for the party.
The above formula is quoted with approval by Subba Rao, J. (as he then was) in Subbaraya Padayachi v. Kozhandaivel Udayar : (1948)2MLJ567 . In fact, the learned Judge would not follow the observations in Palaniappa Chettiar v. Narayana Chettiar : AIR1946Mad331 , that the matter of issue of a commission is one of discretion for the Court. The learned Judge held that a party to a suit has a right to ask for the issue of a commission to examine a witness beyond the prescribed distance. Vaidyalingam, J., in Sathi Amma v. United Commercial Bank (1958) K.L.T. 60, quoting with approval the above cited decisions, held that in the case of a witness residing beyond the limits fixed under Order 16, Rule 19(b), a commission should issue as a matter of right unless the Court is satisfied that a party is guilty of delay or is merely abusing its authority to issue process. It is not for the Court to decide whether the party will be benefited thereby or not; it is a matter entirely for the party. In the case under consideration, it is not suggested that the petitioner is guilty of any laches or is in any way motivated in applying for the examination of the three witnesses in Burma over whom he has no control. I very respectfully adopt the legal formula set out by Wallace, J., and later approved by Subba Rao, J. (as he then was) in the cases cited above. In fact, our High Court has also held that a defendant residing abroad should also ordinarily be permitted to be examined on commission-see Muhammad Ibrahim v. Allapichai : AIR1937Mad24 , In the wake of such a catena of decisions as above and particularly the decision of the Division Bench in Sitamma v. Subraya : (1911)21MLJ889 , referred to above, this Civil Revision Petition has to be allowed straightaway. Learned Counsel for the respondent, however, has drawn my attention to the two decisions referred to by the learned District Munsif in his judgment. Panchapakesa Ayyar, J., in Muhammad Zackria v. Abdul Karim : (1956)2MLJ371 , and Jagadisan, J., in Ramakrishna Kulwant Rai v. Hardcastle & Co. : (1962)2MLJ490 , were of the view that issue of a commission for the examination of a party to the suit is a matter for judicial discretion. They rested mainly on the general rule of practice that a party to a suit should subject himself to examination in Court, such that the Court may watch his demeanour. In fact, they have put it broadly on public policy. The decisions referred to by me in the earlier portion of my judgment were however not brought to the notice of their Lordships in the two above reported decisions. Further, the case under review is distinguishable, as we are concerned in this case with the issue of a commission for the examination of a witness abroad and not for the examination of a party to the suit. This distinction has to be borne in mind. The learned District Munsif relied on the decisions of Panchapakesa Ayyar, J., and Jagadisan, J., and come to the conclusion that no commission need issue. I am of the opinion that the ratio in these cases do not strictly apply to the present case. Even otherwise it cannot be stated that Panchapakesa Ayyar, J., and Jagadisan, J., intended to depart or disturb the well-laid formula of Wallace, J., in Jagannatha Sastry v. Sarathambal Ammal : AIR1923Mad321 . I would therefore respectfully prefer to follow the formula of Wallace, J., who in turn followed the principle laid down by the Division Bench consisting of Abdur Rahman and Sundaram Ayyar, JJ., in Sitamma v. Subraya : (1911)21MLJ889 .
4. I have already stated that Order 26, Rule 5, is pre-eminently applicable to the facts of this case. Even otherwise, Order 26, Rule 4 under the caption of which the application by the petitioner has been preferred, closely follows the language of Order 26, Rule 5 and this rule also can be pressed into service in this case. In the view taken by me as above, the order of the learned District Munsif has to be set aside and the same is hereby set aside. I direct that a commission be issued by the lower Court for the examination of the witnesses as prayed for by the petitioner. The Civil Revision Petition is therefore allowed with costs.