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Case Number

Civil Revn. Petn. No. 1506 of 1959, from order of Dist. Court, Adilabad

Attorney(S)

For the Appellant: M. ATAUR RAHMAN, S.P. SHRIVASTAVA, Advocates.

Judges

Munikanniah, J.

Acts

Rule 19 of Order XVI and Rule 4 of Order XXVI of the CPC,
Order XVI Rule 19 or Order XXVI Rule 4 of the CPC
Rule 4 of Order XXVI of the CPC, with Rule 1
Rule 19 or Order XVI of the CPC
Rule 19 of Order XVI of the CPC
Rule 4 of Order XXVI of the CPC

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This revision petition challenges an order of the District Judge, Adilabad, which refused to issue a commission to examine the defendant and five witnesses sought by the defendant. The District Judge's refusal was based on several observations about the defendant's conduct: the defendant had first declined to cross-examine, then accused the Court, and later did not exercise the right to be examined when allowed; he had not attempted to admit or deny documents filed by the other side; and the Judge considered these acts to be dilatory tactics.

The suit in question is said to be based upon an oral loan, and the District Judge considered the personal examination of the defendant (so that his demeanour could be observed) to be important. The defendant did not produce medical certificates and the application for a commission was not grounded on illness or inability to travel from Calcutta to Adilabad. The District Judge therefore refused to issue a commission for the defendant and some witnesses; the present revision sought to set aside that refusal.

Legal Issues Presented

Whether a court is obliged to issue a commission for the examination of a person (including a defendant) who resides outside the local limits of the court's ordinary original jurisdiction under Order XVI Rule 19 or Order XXVI Rule 4 of the Code of Civil Procedure (CPC).
Whether the right to have a commission issued is absolute (a matter of right) or subject to judicial discretion, particularly where there is a concern that the power to issue process may be abused.
Whether, applying the relevant rules and authorities, the District Judge was justified in refusing to issue a commission in the present case given the defendant's conduct and the nature of the suit (oral loan where demeanour is relevant).

Arguments of the Parties

Appellant's Arguments (Defendant / Mr. Shrivastava)

Relied on Rule 19 of Order XVI of the CPC (and Order XVI generally) to contend that the court trying the suit is precluded from ordering personal attendance of a person who resides beyond the local limits of the court's ordinary original jurisdiction.
Argued that, in such circumstances, a commission must be issued even for the examination of the defendant — i.e., the commission should be issued as of right.
Relied upon the decision of Wallace J. in Jagannatha Sastry v. Sarathambal Ammal (AIR 1923 Mad 321; ILR 46 Mad 574) which, with reference to Rule 19, was said to support the proposition that ordinarily a commission should issue as a matter of right for witnesses beyond the local limits unless the process is being abused.
Also invoked Rule 4 of Order XXVI of the CPC and the view that the court cannot refuse a commission where a person is unable to attend because of illness, interpreting the word “may” in that rule as having the imperative force in certain circumstances.

Respondent / Plaintiff (Mr. Ataur Rahman) and Lower Court Observations

The plaintiff emphasised that certain witnesses (notably Lakhani, managing director of Maheswar Mining and Trading Co., Ltd.) are material and that observation of their demeanour in court is essential to test the plaintiff's case.
The District Judge observed: the defendant had engaged in dilatory tactics, had not produced medical certificates, had not shown that the application was based on illness or inability to travel, had resiled from positions and made accusations against the Court, and had not attempted to admit/deny documents — all of which informed the refusal to issue a commission for the defendant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jagannatha Sastry v. Sarathambal Ammal, AIR 1923 Mad 321; ILR 46 Mad 574	Interpreted Rule 19 of Order XVI: held that ordinarily a commission should issue as a matter of right for witnesses beyond local limits unless the application is an abuse of process; court should not decide whether the party will be benefited by the commission.	The opinion describes this authority and its broad proposition but treats its reasoning as not absolute; subsequent decisions and qualifications mean the rule is not an unqualified right to a commission.
Sitamma v. Subraya, 21 Mad LJ 889; 12 Ind Cas 74	Considered (by a Division Bench) whether the benefit to be conferred upon a party by issuing a commission need concern the court.	The Jagannatha decision purportedly followed Sitamma in part, but the present opinion regards the Sitamma decision as of limited consequence on the point.
Mahomed Ibrahim v. Allapichai Rowther, AIR 1937 Mad 24	Horwill J. felt there need be no distinction in the case of a defendant who removes himself from jurisdiction; a commission should issue for examination if the defendant is away from the jurisdiction.	The opinion records this view as part of authorities supporting a potentially broader right, but does not treat it as decisive in all cases.
Palaniappa Chettiar v. Narayanan Chettiar, AIR 1946 Mad 331	Bell J. dissented from the Jagannatha view; propounded that issuing a commission requires satisfaction of a test that without a commission it would be impossible to place necessary and relevant facts before the Court, and that a commission is not a matter of right.	The opinion cites this dissent to support the position that a commission is not an automatic right and must satisfy a necessity test.
Subbaraya Padayachi v. Kozhandaivel Udavar, AIR 1949 Mad 496	Qualified the right to a commission: available only when a party is not abusing the authority to issue process.	The court treats this authority as reinforcing the view that discretion must be exercised to prevent abuse and that a right to a commission is not absolute.
Re: Subramanian Chettiar, AIR 1955 Mad 210	Discussed discretion and the exercise of revision powers in commission matters (reported pronouncement of Panchapakesa Ayyar, J.).	Used in the opinion to show varying exercises of discretion by the High Court and to support the conclusion that judicial discretion is central to commission issues.
Mohammad Zackria v. Abdul Karaim Rowther, 1956-2 Mad LJ 371	Another pronouncement of Panchapakesa Ayyar, J. showing different outcomes on revision jurisdiction and commission issues.	Taken with Re: Subramanian Chettiar to demonstrate that courts have prudently exercised discretion and that each case depends on facts.

Court's Reasoning and Analysis

The Court undertook a textual and authorities-based analysis focused on two CPC provisions: Rule 19 of Order XVI and Rule 4 of Order XXVI. It noted that both provisions deal with the common circumstance of a person being outside the court's jurisdiction, but that the language differs: Rule 19 of Order XVI uses the word "shall" while Rule 4 of Order XXVI uses "may".

The Court reviewed earlier decisions. It acknowledged that some judges (e.g., Wallace J. in Jagannatha Sastry) had treated a commission as ordinarily issuing as a matter of right for witnesses beyond the limits unless the process was being abused. Other decisions and dissents (notably Bell J. in Palaniappa Chettiar) required proof of necessity — that without a commission it would be impossible to place relevant facts before the court — and refused to treat a commission as an unconditional right. Subsequent Madras High Court decisions qualified the right further by insisting that the court must guard against abuse of process.

From this survey the Court distilled the governing principle: the issue of a commission is not invariably a matter of right; the court must exercise judicial discretion in light of the facts, the possibility of abuse, and the compelling necessity for a commission. The Court emphasised that the position of a defendant seeking to be examined on commission calls for stricter scrutiny — the discretion is to be exercised on "quite justifiable grounds" and an order for a commission "cannot be easily had" where the party's conduct during the suit has not been above board.

Applying these principles to the facts, the Court upheld the District Judge's findings as to the defendant's conduct (resiling from cross-examination, accusing the Court, failing to admit/deny documents, no medical certificates, no basis of illness or inability to travel) and the importance of observing demeanour in an oral-loan suit. Consequently, the Court found no ground to interfere with the lower court's refusal to issue a commission for the defendant or for certain witnesses whose demeanour the District Judge regarded as essential (notably Lakhani and Ram Bali Singh).

As to three other witnesses (Shyam Sunder Deshpande, the manager of Mount Hotel, and Satyanarayana Kalani), the Court considered it too early to be definitive. It observed that some evidence (for example, documents from the Mount Hotel) might be produced by whomever holds the managerial office and that commissioning those witnesses could possibly save expenses or expedite hearing — but such a step would be appropriate only after the examination of the defendant and the main witness Lakhani, or later in the trial as the situation developed. The Court therefore left open the question of commissions for those witnesses to be considered at the appropriate time.

Holding and Implications

Holding: The Court upheld the District Judge's refusal to issue a commission for the examination of the defendant and two named witnesses; the revision petition was dismissed.

Core Ruling: Revision dismissed.

Immediate consequences:

The order of the District Judge refusing to issue a commission for the defendant, Lakhani and Ram Bali Singh is affirmed.
The District Court is at liberty to consider applications for commissions for the other witnesses (Shyam Sunder Deshpande, the Manager of Mount Hotel, and Satyanarayana Kalani) at the appropriate time — specifically after the examination of the defendant and the principal witness Lakhani, or later as circumstances require.
The petition is dismissed without costs.

Broader implications: The opinion articulates and applies the settled principle that commissions for examination of persons outside jurisdiction are not automatically a matter of right; courts must exercise discretion to prevent abuse of process and require a showing of compelling necessity. The decision itself applies that discretion to the facts of this case rather than announcing a new general rule.

CD/K.S.B

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P.R Bizani v. Hans Zucker Baeker .

1. This revision petition is against the order of the District Judge, Adilabad, refusing to issue a commission to examine the defendant or his witnesses. In his order, the learned District Judge has adverted to the vexation caused by the defendant in resiling from his attitude not to cross-examine and then accusing the Court and afterwards also not exercising the right when allowed to do so. It is also pointed out that on behalf of the defendant no attempt has been made to admit or deny the documents filed by the other side and the learned District Judge has been of the opinion that the defendant has been employing dilatory tactics. Having regard to this observation and also because where the suit is based upon the oral loan, the examination of the defendant in Court so as to enable his demeanour to be observed cannot but be considered most essential. The learned District Judge has pointed out that the defendant has not produced any medical certificates and the application is not based on, grounds of illness or inability to travel the distance from Calcutta to Adilabad. In the view the learned District Judge has taken about the conduct of the defendant and of the necessity for the defendant to appear in person in court, it cannot be said that the order of the learned District Judge, in so far as the defendant is concerned, calls for interference.

2. Mr. Shrivastava however contended relying upon Rule 19 or Order XVI of the CPC that the Court trying the suit is precluded from issuing an order to any one to attend in person to give evidence unless he resides within the local limits of the Court's ordinary original jurisdiction and that therefore it is obligatory that, a commission shall be issued even for the examination of the defendant. The learned advocate relied upon the decision of Wallace J. in Jagannatha Sastry v. Sarathambal Ammal, AIR 1923 Mad 321 : ILR 46 Mad 574 where the learned Judge with reference to Rule 19 of Order XVI of the CPC stated:

“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 warty asking for the commission, who resides beyond the limit fixed under O. 16, R. 19(b) of the CPC, 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’. Further on, while on the comparison of the language employed in Rule 4 of Order XXVI of the CPC, with Rule 1 of the same Order, the learned Judge concluded that the word ‘may’ in Rule 1 clearly means that, in the case of persons who owing to illness etc. are unable to attend the Court, the Court cannot refuse to issue a commission”, and that therefore “it is reasonable to conclude that in R. 4 where the same phrase is used, it has the same meaning: that is the Court must, when moved, issue a commission”. The decision, however, seeks to follow that of a Division Bench in Sitamma v. Subraya, 21 Mad LJ 889 : 12 Ind Cas 74; but to my mind, this decision is of little consequence in this context in that the Division Bench appears to have been considering only the question whether in issuing the Commission the benefit to be conferred upon a party need concern the Court. After the decision of Wallace, J., it looked as though there was no option left with any trial Court to refuse to issue a commission if the person to be examined was not within the limits of the Court's ordinary original jurisdiction or when the conditions specified in Rule 4 of Order XXVI of the CPC are satisfied. That Rule 4 in so far as it is relevant, is in the following terms:

4(1) “Any court may in any suit issue a commission for the examination of

(a) xxxxxx

(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”. Though to both Rule 19 of Order XVI and Rule 4 of Order XXVI of the CPC, the first clause viz., a person being outside the limits of its jurisdiction is common, there is indeed a differentiation in that the word “shall” is employed in one and “may” in the other viz., Rule 19 of Order XVI and Rule 4 of Order XXVI of the CPC respectively. This indeed seems to have been responsible also for the further examination of this question by single Judges of the Madras High Court. In Mahomed Ibrahim v. Allapichai Rowther, AIR 1937 Mad 24, Horwill, J. felt that there need be no distinction even, in the case of a defendant whf removes himself away from the jurisdiction of the Court and a commission should issue for the examination of a defendant if he happens to be away from the jurisdiction of the Court.

3. In Palaniappa Chettiar v. Narayanan Chettiar, AIR 1946 Mad 331 Bell J. dissented from the view taken in AIR 1923 Mad 321 : ILR 46 Mad 574 and adumbrated that the requisite for issuing a commission is the satisfaction of the test which consists in the applicant to show that, unless a commission is issued to take the evidence of the person desired, it will be impossible to plate the necessary and relevant facts before the Court in support of his case, but ruled that a commission cannot be issued as a matter of right. Later on in Subbaraya Padayachi v. Kozhandaivel Udavar, AIR 1949 Mad 496, Subba Rao, J. (as he then was) qualified the right of a party to have a commission issued as available only when a party is not abusing its authority to issue process. The learned Judge also pointed out that what has been observed in AIR 1923 Mad 321 : ILR 46 Mad 574 is a mere obiter ‘as the finding in that case was that the particular application was an abuse of the process of Court.’ Thus, a review of the authorities to this extent establishes that there can be no insistence as of right by any party to have a commission issued for the examination of any one merely because the party is outside the jurisdiction unless and until the Court is also satisfied that the real requisite for the issue of the commission is the compelling necessity and that it should not be made a tool for an abuse of the process. So it follows that any discretion which the Court can exercise both under Order XVI Rule 19 or Order XXVI Rule 4 of the CPC has to depend upon its judicial exercise having regard to all the facts which the trial Judge is aware or possessed of. It appears to me that such is the accepted view, and this is strengthened even by the decisions of Panchapakesa Ayyar, J. in two of his pronouncements reported in Re: Subramanian Chettiar, AIR 1955 Mad 210 and Mohammad Zackria v. Abdul Karaim Rowther, 1956-2 Mad LJ 371; for while in the earlier case the learned judge would not exercise the powers of revision, in the latter he did. Having regard therefore to this state of authorities which? mostly concerned witnesses for a party, the position of a defendant who applies for his examination on commission, in my view, calls for stricter scrutiny and the discretion exercisable by a court must be on quite justifiable grounds. The order for the issue of a commission cannot be easily had in such a case if the party's conduct during the pendency of the suit has not been above board. Applying this test to the present case, I am of the view that the order passed by the learned District Judge in so far as he refused to issue a commission for the examination of the defendant, is unassailable.

4. As the order concerns also with the other five witnesses for the defendant, it may be convenient to deal with each witness, and to examine whether the above tests in exercising the discretion vested in the Court have been satisfied. It may, at the outset, be pointed out that Mr. Srivastava has not much to urge in respect of the witness, Ram Bali Singh, and therefore no further reasoning need be employed to have to find that the order of the lower court should stand in regard to this witness. As for Lakhani, who is the managing director of Maheswar Mining and Trading Co., Ltd., at Nagpur, in which the moneys of his company, according to the defendant's averment, for which the suit was laid have been invested, it is contended on behalf of the plaintiff by Mr. Ataur Rahman that his evidence is very material and the observation of his demeanour is essential, if really the truth of the case of the plaintiff has to beta-ought out.

5. The learned District Judge has observed that this witness as could be judged from the pleadings or the indications given, “is involved in this case by the defendant in a manner that the only way-out is to record his deposition in this court only”. This observation cannot be merely said to be an assertion of an impression without substance but must be taken to be an opinion of the learned Judge which he is entitled to form in regard to the witnesses even at this stage. It could not therefore be easily brushed aside. Such being the case with regard to this witness, I do not think the order of the learned District Judge refusing to issue a commission to examine Lakshni, could be interfered with.

6. The other three witnesses to whom commission is also prayed to be issued for examination are (1) Shvam Sunder Deshpande employed in Maheswar Mining and Trading Co., Nagpur, (2) Manager, Mount Hotel. Civil Lines, Nagpur and (3) Satyanarayana Kalani who is said to reside in Nemauch in Central India. Though in the case of these three witnesses also, the learned District Judge is of the opinion that their demeanour should be observed and therefore they should be present personally in the court, it is possible to take the view that it is too early to be so definite about these witnesses. To my mind, it looks as though the production of any documents by the manager, Mount Hotel could be done by whosoever be the manager when the summons are taken out, and therefore the insistence upon the attendance in court of a particular Manager is not altogether justified.

7. For similar or other reasons it may be that the examination of the other two witnesses on commission may be in the interests of saving expenses to the parties or otherwise expediting the hearing of the suit even. But the appropriate time to consider that question would be after the examination of the defendant and his main witness Lakhani. In this view, I am unable to uphold the order of the learned District Judge that the commission should be refused in regard to the examination of these three witnesses and as such that request could be considered later on after the examination of the defendant. Lakhani and Ram Bali Singh or after their evidence is dispensed with if it so happens or as the case may be.

8. In the result, the order of the learned District Judge refusing to issue a commission to examine the defendant, Lakhani and Ram Bali Singh is upheld. The District Court will be at liberty to consider the issue of the commission to the other witnesses, if any application is made thereafter at the appropriate time as mentioned above. This revision petition is therefore dismissed but without costs.

CD/K.S.B

9. Revision dismissed.

P.R Bizani v. Hans Zucker Baeker .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Defendant / Mr. Shrivastava)

Respondent / Plaintiff (Mr. Ataur Rahman) and Lower Court Observations

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

P.R Bizani v. Hans Zucker Baeker .

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