1. This appeal arises out of a suit to enforce a mortgage bond, The property belonged to the Defendant No. 12. On the 13th September 1916, he executed a conveyance of the property in favour of certain persons who are represented by Defendants Nos. 1 to 11; and on the same day those defendants executed a mortgage of the property to the plaintiff. On the 4th November 1916, the mortgagors executed a lease of a portion of the property for a term of three years in favour of the Defendant No. 12. The case of Defendant No. 12 is that though he executed the conveyance, there was an arrangement between him and the other defendants that the latter would hold the property in trust for him, borrow money to pay off his debts, and release the property to the Defendant No. 12 after the debts were paid off, and that as the defendant, as pleader, had conducted a number of suits for the plaintiff (among others a wakf case which lasted for about 90 days for which Rs. 9,000 was clue to him as fees), it was arranged that the amount due to Defendant No. 12 on account of his fees would be set off against the interest payable to the plaintiff' on the mortgage. The Court below decreed the suit and the Defendant No. 12 has appealed to this Court.
2. So far as the execution and consideration of the mortgage bond are concerned, we must accept the finding's of the Court below upon the points, and no contention has been raised before us with regard to them on behalf of the appellant. With regard to the arrangement between the Defendant No. 12 and the Defendants Nos. 1 to 11 set up by the former, the Court below held that it was quite unnecessary to decide on what terms and conditions the conveyance was executed, and that
it might be that it was executed under the circumstances spoken of by the defendant and the terms and conditions as between the defendant and the Defendants 1 to 4, and the predecessors of Defendants Nos. 5 to 11 were such as narrated by the defendant. But I cannot understand how that would affect the plaintiff's claim based on the mortgage bond,
as the plaintiff was not privy to or acquiesced in the arrangement set up.
3. It is contended, however, on behalf of the appellant that the question whether there was an agreement to set off the interest on the mortgage against the fees alleged to be due to Defendant No. 12 has not been properly tried, and for this reason the plaintiff applied for commission for his examination at Rangoon. It was granted; and he was examined on interrogatories and cross-interrogatories. This was in January 1923. When the case became ready for hearing the defendant wanted to have the plaintiff examined in Court and summons was issued on him. It appears from the peon's report that he refused to accept the summons. The summons was served at Dhurung - his ordinary place of residence in the district of Chittagong. A number of petitions was subsequently put in by the Defendant No. 12 in the Court below praying that the plaintiff might be examined in Court. The last application was made on the 22nd April 1924. The Court thereupon ordered the plaintiff
to appear before the Court if defendant deposits the costs of his travelling.
4. On the 3rd May, the defendant deposited Rs. 2. The case came on for hearing on the 5th May, when again the defendant put in a petition praying that the plaintiff might be examined in Court. That petition wag rejected, the deposition of the plaintiff taken on commission was admitted in evidence, and the suit was decreed. Order 26, Rule 8, Civil P.C. provides that
Evidence taken under a commission shall not read as evidence in the suit without the consent of the party against whom the same is offered sinless (a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a civil or military officer of Government who cannot, in the opinion of the Court attend without detriment to the public service; or (b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in Clause (a) and authorizes the evidence of any person being read as evidence in the suit, notwithst anding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.
5. There was no consent of the defendant to the evidence of the plaintiff taken on commission being read against him. On the contrary the defendant all along insisted upon the presence of the plaintiff in Court. That being so it was for the plaintiff to show that he was beyond the jurisdiction of the Court at the time when the evidence was going to be read in Court. There is no such evidence. On the contrary one of the witnesses for the plaintiff said that the plaintiff was at home (i.e., at Dhurung in Chittagong) on the day the witness was examined. In these circumstances the evidence taken on commission under the law could not be read as evidence in the case against the defendant. We may refer to the case of Satish Chandra v. Satish Kanta A.I.R. 1923 P.C. 73 where the Judicial Committee observed:
Evidence taken on commission should only be permitted to be used where the witness is proved to be too ill or is absent or for other sufficient reason.
6. It is contended by the learned advocate for the respondent that although that is so, the Court has the power under Clause (b) of Order 26, Rule 8 to dispense with the proof of any of the circumstances mentioned in Clause (a), and allow the evidence taken on commission being read as evidence in the suit notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same. The Court no doubt has the discretion, but the question is whether the Court exercised that discretion in the present case. No reasons are stated, and having regard to the laxity of practice with regard to evidence taken on commission being read as evidence in the mofussil Courts it is very likely that the Court allowed the evidence to be read without applying its mind to the matter, and without exercising its discretion. At any rate it does not appear from the record that the Court did exercise its discretion in the matter. In these circumstances we think that the evidence taken on commission could not properly be read in Court.
7. It is pointed out on behalf of the respondent that the Court below has disbelieved the evidence of the defendant as to the agreement set up by him. That is true. But the evidence of the plaintiff taken on commission was on the record, and it is difficult to say how far the Court was influenced by the evidence of the plaintiff taken on commission. It is to be observed that apart from the evidence of the plaintiff himself there is no other evidence to contradict the evidence of the defendant on the point.
8. In these circumstances, we think that the case should go bask to the Court below in order that the plaintiff may be examined in Court. If the Court, after considering the evidence of the plaintiff and other evidence in the case is of opinion that the agreement set up by the Defendant No. 12, viz., that the amount of fees payable to the Defendant No. 12 would be set off against the interest payable to the plaintiff, is proved, then the amount decreed by the Court below will be reduced to such sum as the Court may find, not exceeding Rs. 13,906-14-4 at which this appeal has been laid. If no such agreement is proved, then the decree of the lower Court will stand. Costs of this appeal abide the result.