Saboora Bivi Ammal v. Julaika Bivi Ammal.

1. The learned Subordinate Judge of Kumbakonam has construed the expression " expenses of the commission " in Order XXVI, Rule 15 of the Civil Procedure Code as including the expenses to be defrayed by the opposite party to the one applying for the issue of a commission for proceeding from the locality where the court is situate to the place where the commissioner is to function. There is no direct authority on the point except the observations of my learned brother, Mack, J., in Abdurahim Settu v. Muhammad Kasam Settu (1948) 2 M.L.J. 653 where the learned Judge observes that the "expenses of the commission " can be made to include expenses of the other parties to the litigation and can in suitable cases be ordered to be deposited by the party at whose instance the commission was taken out. It seems to me that this proposition has been very widely stated. The phrase " expenses of the commission " in ordinary parlance would mean only what the commissioner has to spend for summoning witnesses and for other incidental expenses relating to the examination of the witnesses before him. No authority has been placed before me where the words have been construed in such wide terms. Moreover, the Civil Rules of Practice (Rule 82) does not contemplate any such thing and all that the rule says is Every application for the issue of a commission shall be supported by an affidavit setting forth the estimated expenses of the commission, and the remuneration, if any, of the proposed commissioner.

2. If one of the parties desires to travel luxuriously by air or in the first class on board a ship, it cannot be said that such a thing can be included as expenses of the commission. In the absence of any direct authority I am not inclined to hold that the word " expenses " would mean that. The learned Sub-Judge was of the opinion that the passage money and the railway fare would be Rs. 150; that cannot be allowed. The learned Subordinate Judge directed the deposit of a sum of Rs. 250 before the issue of a commission. That sum has to be reduced. The petitioner will deposit a sum of Rs. 125 in the lower court within one month from today. The learned Subordinate Judge will decide then as to the person to whom the commission would issue and other necessary matters. If the amount is not deposited, the petition will stand dismissed with costs. Costs of the revision petition will abide and follow the result of the suit.