1. This is a petition to revise the order of the District Munsif of Dharapuram in I.A. No 338 of 1928 in O.S. No. 64 of 1928 to examine a witness, on commission. It is not denied that the witness lives beyond the jurisdiction of the District Munsif's Court and beyond the limits under which he is compellable to attend and give evidence in person under Order XVI, Rule 19, Civil Procedure Code. The order, therefore, is one passed under Order XXVI, Rule 4, though the reason for passing the order is the alleged ill-health of the witne Sections The petitioner claims some property as having come to him from his father; the defendant claims it as having bought it from the witness in question. The latter is an aged High Court Vakil who has retired from practice. The plaintiff has summoned him as his witness to show, I understand, that the sale-deed was executed in the name of the defendant for plaintiff's benefit. The witness certainly appears to be an important witness in the case. The question is whether the order of the District Munsif is one that can or ought to be revised. This is not a case where the reasons on which the Court has acted, if they were true, would not be amongst the grounds under which a commission could be issued under this Order. The cases quoted, Somasundaram Chettiar v. Manickavasaka 31 M. 60 : 3 M.L.J. 246 and Sreenivasa Aiyyangar v. Ranga Aiyangar : AIR1927Mad524 , are cases where the reasons given, even if true, did not authorise a commission being issued. In Somasundaram Chettiar v. Manickavasaka 31 M. 60 : 3 M.L.J. 246 a commission was issued because the witness represented 'that he personally knew nothing of the matters connected with the case, that his evidence was unnecessary, that it had not been the practice for him to appear before the Court and give evidence and that he had been examined on commission in several cases by this and other Courts.' In Sreenivasa Aiyyangar v. Ranga Aiyangar : AIR1927Mad524 the Court granted the commission as it simply found that the witnesses were old. In these cases, there was evidently an order, without jurisdiction which could be interfered with in revision. In the present case, the application for commission was made on the ground that the witness was too ill to go to Court and it is clear that the order was granted on this ground. What is sought to be made out is that the medical certificate and the evidence before the Court did not justify the Court's conclusion. I am, therefore, doubtful whether under such circumstances a revision petition will lie at all.
2. However, I will deal with the medical certificate and with the order. I find it difficult to accept the contention of the petitioner's Advocate that the power of the Court to issue commissions is more restricted under Order XXVI, Rule 4, than it is under Order XXVI, Rule 1. Prima facie, as the text stands, it is Rule 1 which obviously introduces restrictions which are not found under Rule 4(1)(a), and most of the cases which the learned Advocate for the petitioner cited before me to support his view have been cases where the plaintiff himself asked to be examined on commission. That is obviously a different matter. The plaintiff having his choice of venue is clearly not entitled, except for very strong reasons, to ask that he should be examined on commission outside the jurisdiction of the trying Court. The argument for the petitioner on this point, as I understood it, was that, as the party has no legal right that summons should be issued to his witnesses if they are not compellable to give evidence, therefore, the Court should be even more loath to grant commissions on such application than it would be if the witness lived within its jurisdiction. I have not found such a doctrine laid down any where and it does not appear to me to be quite reasonable. At the same time it is clear that the Court, in allowing witness who is capable of appearing for being examined in Court to be examined on commission is depriving the opposite party of an important privilege and may perhaps be said to be acting without jurisdiction. The only case quoted where the person to be examined on commission under Order XXVI, Rule 4 was not the plaintiff is Panchkari Mitra v. Panchanan Saha : AIR1924Cal971 , but the matter there was quite different. The parties sought to be examined were the two defendants and it was the plaintiff who wished to examine them. A medical certificate was put in on the 5th February, 1924, to the effect that the 1st defendant had been ailing for about a month and had grown weak, that he required rest and medication for a length of time and would not be able to undertake any journey within two months. The certificate about the 2nd defendant stated that he was suffering from dysentry and was unable to move about and that it would take one month more to recover perfectly. A commission was issued as prayed for on the 22nd February, 1924. On the 13th March, 1924, the petitioner applied for a re-consideration of the said order but the learned Munsif refused the application with the following order: 'Plaintiff's petition for reconsidering the order passed regarding the issue of commission cannot be entertained now as the commission fee (has been) deposited and the interrogatories filed.' In that case the medical certificate granted to the 1st defendant was dated the 30th January, 1924, and it had been merely stated therein that he would not be able to undertake any journey within two months. The medical certificate for the 2nd defendant was dated the 1st February, 1924, and stated that he would take a month to recover. Therefore on the 13th March, 1924, when the application for the re-consideration of the order issuing the commission was put in, there was no evidence at all that the 2nd defendant was too ill to appear in Court and as regards the 1st defendant, it was quite possible that he was able to do so and at the most he should have been able to attend Court on the 30th March, 1924. Order XXVI, Rule 8 is very clear that evidence taken on commission should not be read as evidence in the suit without the consent of the party against whom the same is offered, unless for the reasons stated in Sub-clause (a) or unless under Sub-clause (b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in Sub-clause (a). Whatever practice may have grown up, the terms of the section are clear and his Lordship the Chief Justice has remarked in Phanindra Krishna Dutt v. Promatha Nath Malia : AIR1928Cal421 that the Privy Council has laid down that they must be followed. The case, therefore, in Panchkari Mitra v. Panchanan Saha : AIR1924Cal971 was as regards one witness a clear violation of Order XXVI, Rule 8 without any reason at all, and as regards the other witness a failure at least to keep this rule in sight. In the present case, it is not and cannot possibly be contended that in considering the medical evidence that the witness was too ill to attend Court, a more stringent view should have been taken if the witness was living at such a distance from the Court that he was not compellable by summons than if he lived within its jurisdiction. In this case, the witness sought to be summoned is admittedly a retired High Court Vakil aged about 60 living in a somewhat remote spot about 66 miles from the Court. The medical certificate was as follows:
I, T.N. Subramaniyan, L.M. & S., Registered Medical Practitioner, do hereby certify that Mr. V. Rama Ayyar, B.A., B.L., of Srinivasa Nallur, Musri Taluk, is in a bad state of health and I solemnly and sincerely declare that to the best of my judgment his condition of health is such that travel or physical strain will be extremely prejudicial for his safety and in the best interest of his health he should not attempt to travel out of his village.
Statement of the condition of Mr. V. Rama Iyer, B.A., B.L., aged about 60 years. He is suffering from Chronic Bronchitis, Dilatation of the heart, weakness and Paralysis agitans.
3. The medical certificate is dated 27th March, 1928. The present petitioner put in a counter-affidavit in which ha denied the illne Sections Though he made certain statements in para. 9 that the witness was moving about and travelling to various places, he did not call any evidence in support of it. The order of the learned District Munsif is as follows:
This is an application for the issue of a commission to examine a witness at his residence in Srinivasa Nallur.
The application is opposed.
The witness is admitted to be an old man and though a High Court Vakil he is said to have now settled down in his village giving up practice at the Bar.
The application is supported by a medical certificate. Though notice of this application has been given to the respondent and he has had sufficient time, there is only the bare allegation of the interested party, defendant-respondent, that the witness is healthy. If the respondent's case were true he might have got the witness examined by another medical man and produced a certificate in support of his contention.
The medical certificate has been given by a registered medical practitioner. I see no sufficient ground on the materials placed before me to suspect it. The certificate states that the witness is suffering from a complication of diseases and suggests that he could not safely be asked to undertake a tedious journey by a motor car or bus for a long distance. This Court is far away from all Railway communication and is accessible only by a motor or other conveyance.
There does not appear to be much substance in the objections of the respondent. The contention that the application is premature is rather novel in the face of the express provisions of law that all applications for commission must be made as early as possible.
There does not appear to be much substance in the other objection that the respondent has had no time to obtain copies of records. The allegation that the defendant respondent is a near relation of the parties is not denied. The allegation in para. 9 of the plaint is that the respondent was looking after the litigation on behalf of the plaintiff's father. This does not appear to have been specifically denied. Some of the records produced by the respondent are certified copies in the suit which appear to have been obtained long ago by the respondent. I am unable to appreciate the force of this objection either, Paragraph 6 of the counter does not deserve any serious notice as a responsible statement. It is urged that the opposition is only to delay the trial and make this evidence of the witness unavailable. Having regard to the terms of the medical certificate, I think that the petitioner is entitled to an order for the examination of the witness on commission. The respondent can cross-examine the witness even before the Commissioner.
4. The rest of the order need not be quoted. The order is diffuse and not very artistic and no doubt the learned District Munsif was wrong in expecting the defendant to have the witness medically examined, which he had no power to do if the witness were unwilling, but the finding is in substance that the witness is unable from illness to attend the Court. It cannot be said that such a finding has no basis looking to the medical certificate. It has been argued that none of the three complaints from which the medical certificate states that the man is suffering is by itself very dangerous or fatal, but it is quite possible that the complication of all the three may be dangerous. At any rate, there is the distinct statement that 'his condition of health is such that any travel or physical strain would be extremely prejudicial to his safety' and the meaning of these words, I take it, is that he will run a serious risk of death by being forced to attend Court. I do not think that the objection that it was not the witness himself that applied for his examination on commission is of any importance. In Phanindra Krishna Dutt v. Promatha Nath Malia : AIR1928Cal421 his Lordship Rankin, C.J., observes: 'Given the fact that the Court is satisfied under Rule 1, Order XXVI, that the person is sick and unable to attend Court and that the Court has exercised its discretion as to whether in those circumstances a commission should issue and has issued a commission, I am clearly of opinion that that discretion cannot be revised under Section 115, Civil Procedure Code, whether the judgment of the Court below on this interlocutory application consists of a complete treatise on the subject or an incomplete treatise on the subject.' The learned Advocate for the petitioner has placed great reliance on some remarks of the Privy Council in Satish Chandra Chatterji v. Kumar Satish Kantha Roy 73 Ind. Cas. 391 : 39 Cri.L.J. 165 : A.I.R. 1923 P.C. 73 : 45 M.L.J. 363 : 28 C.W.N. 327 : 33 M.L.T. 325. It may be noticed that that was a regular appeal. The question whether the order passed could have been revised was not in question and the principal matter was the credibility to be attached to the evidence given on commission under such circumstances. It is not clear from the report whether the order for commission was issued under Order XXVI, Rule 1 or Order XXVI, Rule 4. It is impossible to say what the medical certificate in the case was, for it was not even before the Privy Council. Their Lordships state: 'The date of the medical certificate mentioned in this order of the 2nd December is not given. No such document is to be found in the printed book, but in the list of omitted exhibits at page XX is to be found this description: 'Medical certificate given. Satish Chandra Chatterji, dated l9th July, 1916.' The order of the Subordinate Judge passed on the 21st June, 1916, was as follows: 'I think the defendant should not be compelled to attend Court for deposing as he has got a big hydrocele from which watery substance comes, and he is not in a position to move to a distance from his house'. Their Lordships observed that this was not a fit case for exempting the witness from attending Court and that he might have been provided with a chair in Court. In the absence of the medical certificate in this case, especially as the learned Subordinate Judge did not find in terms that the witness was too ill to attend or was physically unable to attend Court, I do not think that this case is of much use where this Court is asked to interfere in revision against an order based on a medical certificate which clearly implies that the witness is suffering from sickness and infirmity and unable to attend Court.
5. Something has been mentioned by the petitioner's Advocate that this Court might order the transfer of the suit to the Court of the District Munsif of Kulitalai which is apparently only 13 miles away from the residence of the witness sought to be examined. I have, however, no such application before me, and if it is to be made it must be made by a separate motion.
6. I find no reason to interfere in revision with the order passed. The petition fails and is dismissed with costs.