1. This is a rule in revision obtained by the plaintiff calling upon the defendant to show cause why an order should not be set aside whereby the defendant was ordered to be examined on commission at his own request.
2. It appears that the suit was launched in 1925 for the recovery of some Rs. 49,000 as remuneration due for work done as a managing contractor of a colliery and that the defendant had paid Court-fee on a counter claim for some two and half lacs, on account of damages alleged to have been caused to the defendant's colliery by the negligence of the plaintiff. The issues which were settled in 1925 contained a great many matters arising out of the counter claim.
3. In April 1927 the defendant put in a petition that he might be examined on commission on the ground that he was suffering from lumbago which made it impossible for him to remain in the same position for more than ten minutes. He filed a medical certificate to that effect. The plaintiff objected. He says that he took the point that the defendant in respect of the counter-claim was really in the position of a plaintiff. He disputed that the defendant was ill as alleged and that there was any necessity for his examination on commission, and he attacked the independence of the doctor who gave the medical certificate. The application was repeated and by the order of 6th May 1927 the Subordinate Judge granted the application. It appears from the order recorded that the main ground of opposition was that
the case may not be taken up at an early date and that the witness, even if he is unwell, may recover in the meanwhile. The plaintiff does not admit that the witness is really ill. It is not known when the case can be taken up.
Having set out these matters the learned Subordinate Judge goes on to say this:
After hearing the pleaders I do not think that it is a fit case in which the prayer for the examination of the witness on commission shall be refused. I should however, recoup the other party by giving the cost of pleader for the examination of the said witness.
4. He went on to order that the applicant should deposit Rs. 96 as plaintiff's pleader's fee for three days and if the examination should last for more than three days the witness would be required to pay at the rate of Rs. 32 per day as the plaintiff's pleader's fee.
5. This Rule was obtained by way of challenging that order and reliance has been placed by the learned advocate who appears for the applicant upon several decisions of this Court. To begin with it has to the observed that the present case is within Order 26, Rule 1, Civil P.C., and that it is not a case under Rule 4 to which different considerations may apply. That rule says:
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 this Code from attending the Court or who is from sickness or infirmity unable to attend it.
6. In this class of cases we have not to deal with the case of a plaintiff who has a choice to bring his own suit in a particular forum and then asks to be examined on commission on the ground that he cannot attend at the place where he has chosen to sue. We are dealing with an application on the ground of sickness-or infirmity and, broadly speaking, even although a man's defence consists of an equitable counter-claim it would prima facie be more just that the defendant even if he has a counter-claim, if he really cannot attend to give his evidence in Court should be examined on commission. No doubt it was the duty of the learned Subordinate Judge to satisfy himself very carefully as to the seriousness and reality of the sickness that was alleged and, if I may be allowed to say so, the judgment of the Subordinate Judge is very unhappily phrased. It is phrased in flabby language and it is indefinite to a degree.
7. The question is not whether this is a. fit case in which the prayer for the examination of the witness on commission should be refused. The question is whether it is a case in which it has been established by reason of the illness of the, defendant that the prayer for examination on commission must in justice be granted. It is however, in my opinion, an unjust hypercritical attitude to take to say that the learned Subordinate Judge has not intended to find that the defendant is ill and suffering from lumbago as alleged, and we have therefore to consider whether there is any real reason why this order should be interfered with under Section 115, Civil P.C. It is, quite clear that in a case of this character the whole jurisdiction to make such an order arises out of the fact, which has to be found, of the sickness of the person in question. When it is found that he is unable to attend Court by reason of sickness or infirmity the rest is a question of discretion. Indeed, it may be said that in such a case it would be a very strong measure to refuse an examination on. commission.
8. Learned advocate for the applicant relied upon certain cases of this Court and of the High Court of Patna. These cases proceeded usually under Rule 4, Order 26 and they have reference to the question whether a plaintiff choosing his forum should be examined on commission. So far as those cases are concerned there appears to be authority for the proposition that if a Court does not think that the discretion given to the Court by Rule 4, Order 26, is properly exercised it can treat the matter as a material irregularity. Other cases seem to go upon the footing that the Court can treat the matter as a material irregularity unless it appears from the order recorded by the lower Court that the principles of law which may be thought applicable to the subject-matter being disentangled they were all considered and separately applied. Whether these cases are in the least consistent with the interpretation of the Privy Council, from time to time, of Section 115 of the Code may be seriously doubted. In the present case it is not necessary for me to discuss that particular question. Given the fact that the Court is satisfied under Rule 1, Order 26, 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 P.C., 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.
9. In the present case however, it is advisable to call attention to Rule 8, Order 26. In a recent case in this Court Mahim Chandra v. Naba Chandra : AIR1927Cal43 , before Sir Nalini Ranjan Chatterjea and Mr. Justice Panton, it has been pointed out that that rule is to be treated as a reality. That is a case of a man who got himself examined at a time when he was outside the jurisdiction. At the time of the hearing he was within the jurisdiction and the other party wanted him to give his evidence in Court in the ordinary way. The Court as the man's evidence had been taken on commission allowed the commission evidence to go in and it was pointed out that in those circumstances the evidence taken on commission could not be read as evidence in the case against the defendant in view of the provisions of Order 26, Rule 8, there being no material which would ground the exercise of a discretion on the part of the Court to dispense with the proof of the various matters mentioned in that rule. Again, in the case of Bon Behary Chatterji v. Satish Kantha Roy A.I.R. 1923 P.C. 73, Lord Atkinson, delivering the judgment of the Judicial Committee, commented upon a case where it appears that in December 1916 a commissioner was appointed, evidence was given on commission in January 1917 and the trial commenced in February 1917; and the Judicial Committee there pointed out:
Evidence taken on commission should only be permitted to be used where the witness is proved to be too ill to give his evidence in Court or is absent or for other sufficient reason. If Satis went to the Court he could and presumably would have been accommodated with a seat and so on. The whole procedure in this matter strongly suggests that it was his aversion to undergo the ordeal of an examination in open Court, in the presence of those who knew him, rather than ill health, which kept him from the witness box.
10. I take this occasion to point out that when this case comes on for trial the mere fact that this commission has been ordered now will be no reason whatever, by any one to look at it unless it is found that at the time of the hearing sickness or infirmity or other reason prevents the witness from giving his evidence in the ordinary way. I say that the more emphatically as there is some authority in the books particularly in the case of Dhanu Bam Mahto v. Murli Mahto  36 Cal. 566, which gives colour to the view that once a commission has been ordered and executed the commission evidence goes in ipso facto and without further consideration. I do not say that that proposition was intended to be laid down in the case in which I have referred, but the decision and the reasoning lend colour to that view and I am particularly anxious, therefore, that it should be made clear to the lower Court that Rule 8, Order 26, is as much a rule of procedure in the mofusil as anywhere else and that what the Privy Council has laid down and this Court has recently laid down in the case to which I have referred is the proper method for conducting the case. It does not seem to me that in this case the question whether the man is shown to be so ill that it was advisable to take his evidence on commission is a question of such a character that the learned Subordinate Judge is bound to answer it correctly on pain of being guilty of a material irregularity.
11. In these circumstances I am of opinion that this rule should be discharged with costs : hearing fee two gold mohurs.
12. I agree.