1. The lower Court in this case has refused to issue a commission for the examination of two of the petitioner's witnesses one living in Bombay, and another in Goa, who cannot be compelled to attend Court by ordinary process, and the revision is directed against the said order of the lower Court. The petitioner contends that as a matter of right he is entitled to have the commission issued for the examination of the said witnesses. The Respondent, however, contends that it was entirely a matter for the discretion of the Court and that the lower Court has exercised the discretion properly in refusing to issue a commission.
2. The practice in English Courts undoubtedly is that it is a matter of judicial discretion for the trial Court to issue a commission. The practice in India, however, has not been uniform. Wallace, J. in Jagannatha Sastri v. Sarathambal Ammal (1923) 44 M.L.J. 202 : I.L.R. 46 Mad. 574 : 17 L.W. 251 construed the word "may" occurring in Order 21, rules 1 and 4 as being imperative, that is, the Court must, when moved issued a commission. The learned Judge, after refering to the relevant earlier decisions on the point 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 party asking for the commission, who resides beyond the limit fixed under Order 16, Rule 19(b), Civil Procedure Code 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.
3. In Sitamma v. Subraya (1911) 21 M.L.J. 889 : 12 I.C. 74 Abdur Rahim and Sundara Aiyar, JJ. had held that a party to a suit has a right to the issue of a commission to examine a witness beyond the prescribed distance, apart from the question whether he would be ultimately benefited by it.
4. In Palaniappa Chettiar v. Narayanan Chettiar (1946) 1 M.L.J. 179, Bell, J. observed that the issue of a commission to examine a witness is a matter of discretion for the Court to be exercised in the circumstances of each particular case.
5. In Subbaraya Padayachi v. Kozhandaivel Udayar (1948) 2 M.L.J. 567, Subba Rao, J. (as he then was) also expressed that a party to a suit has a right to ask for the issue of a commission to examine a witness residing beyond the prescribed distance.
6. Panchapakesa Aiyar, J. in Mohamed Zacharia v. Abdul Karim Rowther , while refusing to issue a commission to examine a witness in Singapore observed in his inimitable way:
The days of buffalo carts and bullock carts have gone, and the whole world has become one now, any part of which can be reached within a week at the maximum. Singapore appeared to be fabulously distant to our ancestors, like Banaras, but has now become easily accessible, and can indeed, be reached in a lesser time than many interior village in India itself. In a case like this, it will be of the greatest help to the Court to see the defendant and observe his demeanour when he gives evidence.
7. Jagadeesan, J. in Ramakrishna Kulvant Rai v. Hardcastle & Co. , after referring to the relevant provisions of the Code of Civil Procedure expressed the view that the following observations, of Chitty, J. in Rose v. Woodford L.R. (1894) 1 Ch. D. 38 at page 42:
When it is the defendant's application and particularly that of a defendant lawfully resident out of the jurisdiction, according to the ordinary course of his life and business and to compel these defendants to come over here, at great expense to attend the trial, or give up their case, would be oppressive and unfair, and in my opinion it would be wrong to apply to the case of a defendant the principles that are applicable to the case of plaintiff asking for a commission to examine himself.
were out of place on the ground that the "conditions of life have undergone a radical change, Transport facilities are not now confined to the terra firma, land and water, but have extended to the air medium, what was oppressive and unfair in the days of Justice Chitty due to the place of residence of the defendant being miles and miles away from the Court house may not be so in the present day.
The learned Judge also stated that however valuable old judicial precedents may be, a blind and devotional adherence to them without proper adaptation to the present realities of living conditions may lead to miscarriage of justice and refused to issue a commission to examine a witness at Bombay observing:
There can, of course, be no rule of law demarcating the boundaries and the area of the discretion to be exercised in these matters. What can however be stated is that the Court of nisi prius must act judicially, having regard to all the circumstances of the case, the desirability of the physical presence of the witness in Court to enable it to observe his or her demeanour, and the not unusual fact that convenience and economy of expense for the applicant may involve his opponent in great inconvenience and considerable expenses.
8. On a due consideration of the above decisions in the light of the provisions of Order 16, Rule 19 and Order 26, Rule 4, of the Code of Civil Procedure, the legal position may be summed up thus : In the case of parties the Court has a discretion in issuing a commission and the discretion will be very strictly exercised in the case of the plaintiff, while in the case of the defendant it would be more liberally exercised. In either cases it is clearly within the discretion of the Court to consider whether the party should be examined in the presence of the Court or on commission. The fact that the party is residing beyond 200 miles from the Court house does not confer any right to be examined on commission. The position with regard to witnesses is different. A witness residing at a distance of more than 200 miles has a right to be examined on commission provided that he is not within the control of the party mating the application, and that the application is not an abuse of the process of Court or actuated by mala fides or fraud.
9. In a recent decision Zabiya Bibi v. Sivaperumal (1970) 1 M.L.J. 89 : (1968) 81 L.W. 430, Ismail, J. has pointed out the distinction between a party witness and a third party witness in the matter of issue of commission and held that whether a commission should be issued for the examination of a witness or not is always a matter of discretion of the Court but, in exercising the discretion the Court will have to take into consideration the fact whether the persons sought to be examined on such commission is a party to the suit or merely a witness and that even as between the parties there is again a basic difference between the plaintiff and the defendant.
10. Ananthanarayanan, C.J., in A.R. Lakshmana Chettiar v. Vadivelu Ambalam (1967) 1 M.L.J. 252, laid down that where a witness is not under the control of the party asking for the commission and he resides beyond the limits fixed under Order 16, Rule 19 of the Code, it would be a proper exercise of judicial discretion to issue the commission, if the evidence of that witness is essential for the party seeking to have him examined.
11. In this case the two reasons given for the refusal to issue the commission are (1) that the Court would be deprived of the opportunity of observing the demeanour of the witness by granting permission for examination of the witness on commission, and (2) that the commission has been sought only to protract the proceedings. The first reason given is clearly-untenable as that reason can be given to negative the request for a commission in all cases and practically taking away the right of exemption from personal attendance Order 16, Rule 19. The Lower Court has pointed out that there is no personal impediment for the witnesses appearing in Court. Perhaps, the Lower Court has in mind the provisions of Order 26, Rule 1. But when the statute provides that a witness cannot be compelled to appear in Court when he resides beyond 200 miles the Court cannot insist that he must be examined in Court on the ground that the demeanour of the witnesses has to be noted. Of course, considerations like the conduct of the person making the application for commission, the delay or laches as well as negligence on his part in making such an application can be taken into account, and it cannot be suggested that at any stage and in all circumstances however negligent the party may be the Court is bound to issue a commission when sought for by a party. As pointed out in In re., Subramanian Chettiar (1954) 1 M.L.J. 449 : A.I.R. 1955 Mad. 210, demeanour is not so important as to take away the right to issue a commission to examine witnesses in deserving cases. Therefore, the first reason given by the Lower Court for refusal of the commission is not sound. The second reason is that the petitioner wants to protract the proceedings. It is stated that the application for the commission closely followed the filing of the written statement and that there has been no delay in moving the Court for the issue of the commission. In the circumstances of this case it cannot be said that the intention in applying for the commission is to drag on the proceedings. The witnesses are sought to be examined to prove the factum of discharge pleaded by the petitioner. One of the witnesses is said to be the brother of the petitioner and the other his friend. But from the mere relationship or friendship it cannot be assumed that they are under the control of the petitioner. So long as it is not established that the witnesses are under the control of the petitioner, the petitioner has got a legal right to have a commission issued unless the Court is satisfied that the party is merely abusing its authority.
12. It is however, stated by the respondent's learned Counsel that the suit is one on a promissory note that the witnesses sought to be examined on commission are said to have witnessed certain payments made in discharge of the promissory note, and that such evidence is not material in a suit based on a negotiable instrument. But it is well established that the Court cannot decide at this stage whether the party will be benefited or not by the evidence to be adduced by the witnesses on commission. In the circumstances of this case I hold that it would have been a proper exercise of the judicial discretion if the Lower Court had issued a commission. I therefore set aside the order of the Lower Court and direct a commission to be issued as prayed for. But the expenses of the commission have to be met by the petitioner in any event.
13. In the result, the civil revision petition is allowed but, there will be no order as to costs.