M.N. Mukerji, J.
1. The question which arises for consideration in this Rule is one of considerable practical importance. I have not been able to discover any authority, so far as this Court is concerned, on the precise point which arises for decision but upon the plain provisions of the statute and general principles of justice about which there can be no dispute, I have not the slightest doubt in my mind as to what my decision should be.
2. The facts that need be stated are these : The petitioner is the plaintiff in a suit being T.S. No. 1001 of 1923 of the court of the Munsiff of Chaudanga, the opposite parties Panchanan Shaha and Mohini Mohan Shaha are the defendants Nos. 1 and 2 in that suit. The suit is for specific performance of a lease based upon allegations of fraud on the part of the said opposite parties. On the 21st December, 1923, the petitioner applied for summonses against the said opposite parties in order to examine them as witnesses on his behalf, and as far as can be made out from the records the said summonses were issued. On the 5th February, 1924, the said opposite parties applied for being examined on commission and in support of their applications they filed medical certificates. The certificate filed on behalf of Panchanan Shaha ran thus:
This is to certify that Babu Panchanan Shaha has been ailing with low fever attended with sore throat and tonsillites for about a month and has grown very weak. In my opinion he requires absolute rest and medication for a length of time. He will not be able to undertake any journey within 2 months. (Sd.) Hem Chandra Bhomick, L.M.S. Pabna, 30-1-24.
3. Mohini Mohan Shaha's certificate was in these words:
This is to certify that Babu Mohini Mohan Shaha is badly suffering from dysentry and fever from the middle of January last. In the present state he is quite unable to move about. He will take at least one month more to recover perfectly. He is under my medical treatment. Sd. H.K. Chatterjee, L.M.S. Registered No. 3228 Cal. 1-2-24.
4. The learned Munsiff on the 22nd February, 1924, ordered the issue of the commission as prayed for in spite of opposition by the petitioner. The relevant portion of the said order runs 'Let the commission be issued as prayed for.' On the 13th March, 1924, the petitioner applied for reconsideration of the said order; but the learned Munsiff refused the said 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, Hence their prayer (sic) rejected.
5. It has to be observed that the commission fees were deposited and the interrogatories were filed on behalf of the opposite parties. The petitioner thereupon moved this Court and at his instance the present Rule has been issued. The petitioner insists on the examination of the said opposite parties being held in court in the usual way. At the outset I must notice an objection that Las been urged on behalf of the opposite parties. It is to the effect that the learned Munsiff had a very wide discretion as to whether commission should or should not issue and this Court should not lightly interfere in revision with the orders aforementioned which were passed by him in the exercise of his discretion. Speaking for myself I do not regard a matter of this description as being a question of discretion at all. In my opinion it ultimately resolve a itself into a question as to whether a court can be said to have acted with jurisdiction in taking away from a litigant the rights which he undoubtedly has under the law, of having his witness brought before the court and examined before the court in accordance with the normal procedure; in other words whether the circumstances disclosed in the case gave the court jurisdiction to depart from the usual course prescribed by law. I am fortified in this view by the observations of Cotton, L.J. in this case of Berden v. Greenwood (1882) 10 Ch. D. 764 note where on a question of this character he observed as follows : 'But the present case is not one of discretion within the meaning of that rule. The court on the evidence before it has to arrive at a necessary conclusion whether it is or is not necessary for the purposes of justice that the ordinary mode in which evidence is to be taken should be departed from, and unless the court does arrive at the conclusion that it is necessary it is the right of the person who opposes the examination in the way proposed to have the; evidence taken in the usual way. If the Court does arrive at that conclusion, it is the right of the party applying for the commission to have it. It is not a matter of discretion in the sense in which that word has been used in the argument before us; it is entirely different. We have to answer the question, is it necessary for the purposes of justice that the ordinary way of taking evidence should be departed from? It is true that the wording of the rule referred to in that judgment is different from that of the corresponding rules of our Code; but I have no reason to think that any different principle was intended to be applicable here.
6. Order 16, Rule 1, Civil Procedure Code provides that at any time after the suit is instituted the parties may obtain on application to the court or to such officers as it appoints in this behalf summonses to persons whose attendance is required either to give evidence or to produce document. Under this rule a party is entitled as of right to summonses on his witnesses: Bai Kali v. Alarakh Pirbhai (1890) 15 Bom. 86. So long as the application is made after the institution of the suit and before its final disposal the court is bound to issue summonses. The only case in which the court has power to refuse to issue summonses is where the application is not made bona fide, and in such a case the court acts in the exercise of its inherent power to prevent the abuse of its own process : Veerabadran v. Nataraja (1904) 28 Mad. 28. It was not suggested in the court below that any such abuse was contemplated; up till the present moment the application of the petitioner for summoning the opposite party as witnesses as all along been treated as a bona fide application and I do not think it would be right for me to take a contrary view. The provisions of Order 16, Rule 19, Civil Procedure Code, affording grounds of exemption to a witness to attend in person need not be considered in the present case, as no such grounds exist here. Prima facie therefore the petitioner was entitled to have the opposite parties as witnesses before the court.
7. Turning now to the provisions of Order 26 dealing with commissions to examine witnesses we find Rule 1 lays down that any court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under the Code from attending the court or who is from sickness or infirmity unable to attend it. Rule 2 provides that the commission may be issued by the court either of its own motion or on the application of any party or of the witness, to be examined. Rule 3 lays down to whom such a commission may be issued for execution. Rule 4 provides amongst others that any court may, in any suit, issue a commission for the examination of any person resident beyond the local limits of its jurisdiction. Under the last-mentioned rule the court has a discretion to grant or refuse a commission; but the discretion has got to be exercised judicially. If the plaintiff insists on the attendance of his witnesses in court and the witnesses apply for their examination on commission, the court undoubtedly will have to take into consideration the grounds upon which the commission is applied for, but at the same time it cannot lose sight of the prejudice that might be caused to the plaintiff by reason of such commission being issued. If sickness or infirmity is alleged, the character and gravity of that sickness or infirmity have got to be assessed, and the risk consequent upon a refusal to issue a commission will have to be taken into consideration. At the same time the importance of having the witnesses present before the court, the advantages that would follow from their examination and cross-examination in the presence of the court and the emergency which might arise of having then confronted or identified should not be altogether lost sight of. If all these matters are duly considered and an order is passed, then and then only can it be said that the order has been passed in the exercise of a judicial discretion.
8. In the case of Berden v. Greenwood (1882) 10 Ch. D. 764, Baggallaly, L.J., said,
We must regard the interest of justice, the interest of the defendant as well as of the plaintiff, and of course we must consider the nature of the issues which are raised in the pleadings'...'one can well imagine the extreme importance of the defendants in a case of this kind of having the fullest opportunity of thoroughly investigating the claim and testing by cross-examination the witnesses who are called.
9. If the witness is a credible witness it is hardly material whether he gives his evidence viva voce in court or before a commission or by affidavit or in any other form. But we must assume the possibility of his not being a credible witness and then it becomes, of the most extreme importance that the jury or the court which has to decide the question should have the opportunity of seeing the demeanour of the witness and observing the way in which the various questions which are put to him in cross-examination are answered Now it has bean suggested that the questions for the cross-examination of the plaintiff (assuming that the commission is to issue) have been put in a form which do not indicate any very searching inquiry or anything as to which there might be any great advantage in his giving his answers before the jury rather than before the commissioners, who would report the effect of the answers. But it must be borne in mind that when cross-examinations of this sort are made, the answer to one question is suggestive of other questions, and unless the whole body of legal advisors of the defendants are to go over and attend the commission, so that they may be prepared to meet any possible emergency which may arise in the course of the cross-examination, it does not appear to me that there would be the same facilities of cross-examination before the commission as there would be if the witness were here giving his evidence in court:
In the same case Cotton, L.J. said : 'But we ought to consider not merely what the plaintiff's case requires, but what justice to the defendant as well as to the plaintiff requires. And in such a case as this, it is, in my opinion evidently important that the demeanour of the witness should be seen and his precise answers to the questions put to him should be heard by the Judge or the Judge and Jury, who have to decide the case, and that the defendants should have the fullest opportunity of cross-examining him, they being really-only able to do that effectually when the witness is in court, and his demeanor, and the way in which he answers the questions can be judged by the Judge and the Jury.
10. In the case of Panachand Ghotalal v. Manohar Lal Nandlal (1917) 42 Bom. 136, which was a case in which a commission had been issued for the examination of the 1st defendant in the suit on ground that he was a religious preceptor of an exalted rank, it was held that the court should not allow witnesses to be examined on commission without adequate reasons. Sir Stanley Batchelor, A.C.J., in that case observed as follows : 'Before leaving this part of the case I must register my protest against the Lower Court's action in allowing this 1st defendant to be examined on commission. I am clearly of opinion that that was a great mistake'...'' it seems to me to be very important not to relax the rules laid down in the Code or to encourage the notion that parties to a suit can win their cause without going into the witness-box to support it when they are able to do so. Such laxity of procedure has this further disadvantage that the Court is deprived of the invaluable assistance afforded to it by seeing the party as a witness under examination and cross-examination. In the present case the most important witness in the suit; defendant No. 1, has never been seen by learned Judge who tried the suit and that Judge had to decide with-out knowing the kind of witness this religious preceptor was or the figure that he cat under cross-examination. I have made these strictures because laxity of procedure on this point is more common than it should be in the Subordinate Courts, and I believe that in conceding such privileges to one party there is grave risk of doing injustice to his opponent. Generally the rule should be impartially enforced that any person of-what-over rank or position or holiness who seeks the court's assistance to protect his rights must be subject to the rules of the court as unreservedly as the humblest of litigants.'
11. It is true that that was a case where exemption was sought for not on the ground of sickness or, infirmity but on the ground of rank and holiness, but there can be no difference in principle as between the two classes of cases. The practice of indiscriminate issue of commissions has also been very recently condemned by the judicial Committee in the case of Satis Chandra Chatterjee v. Kumar Satis Kanta Ray A.I.R. 1923 P.C. 73. In my opinion the orders passed by the learned Munsiff do not disclose that any consideration whatsoever was paid to any of the relevant circumstances in making those orders. The certificates were relied upon as a matter of course and the sufficiency of the certificates does not appear to have been at all considered. To my mind they are, to say the least of them, very unconvincing; and accepting every one of the statements contained in the certificates to be true, a proper case for issuing a coin-mission for the examination of the opposite parties cannot be said to have been made out.
12. It has been urged on behalf of the opposite parties that one of them has already been examined in pursuance of the commission, but it appears that such examination, if any, must have been held upon interrogatories filed on behalf of the defendants only. My attention has been drawn to a medical certificate dated the 6th April, 1924, in favour of the opposite party Mohini Mohan Shaha granted by Mr. HL. Chatterji, L.M.S., who had given him another certificate previously which has been referred to above. In this certificate too, doctor says that his patient is still very weak and quite unable to undergo the strain of travelling a long distance and moving about, and he states that it will take his patient at least one month more to recover perfectly. Judging from the nature of ailment disclosed in this certificate and also taking into consideration that the one month mentioned therein is about to expire I do not think that the order which I propose to pass will cause any hardship to his patient.
13. The orders passed by the learned Munsiff referred to above must in my opinion be set aside and I accordingly do set them aside and make the Rule absolute, and direct that those HTO opposite parties be summoned oil payment of usual costs by the petitioners, to depose in court in the usual way.
14. I make no order as to costs in this Rule.
15. In making the above order, I must not be understood as in any way dealing with the question as to the procedure to be adopted for the examination of the opposite party as witnesses or the consequence of such examination, having regard to the observations of the Judicial Committee in the case of Kishori Lal v. Chuni Lal (1908) 31 All. 116 and of this Court in the case of Luchiran v. Radha Charan A.I.R. 1922 Cal. 267.