1. This is an application by the defendant for issue of a commission to examine Mr. Alan Fulton Mac-Donald at No. 59 Penn Hill Avenue, Parkstone, Dorset in England. It is alleged in the petition that Mr. Mac-Donald was the Chairman of the defendant company from 1-1-76 to 30-12-77 and during his tenure of service he had written several letters which were relied on by both the parties in the present suit. It is further alleged that the witnesses of both the parties have referred to him several times. Mr. MacDonald has retired from service and at present is not under the control of the petitioner. He is 54 years old and is a permanent resident of Britain and as such he cannot be compelled to come to India for giving evidence. In para 13 of the petition, it has been alleged that the petitioner had made all arrangements to bring Mr. MacDonald to India to give evidence in the suit. But in March, 1979, when the petitioner's Director Mr. Pepperell requested Mr. MacDonald to come to India for giving evidence, he declined to do so on the ground that he had been suffering from severe skin infection since Jan. 1979 and had been advised by the doctor not to travel and expose himself to the hot climate. The petitioner relied on a medical certificate issued by one Mr. P.W Isaac, M.A.B.B, B. Chir of No. 100 Penn Hill Avenue, U.K
2. There is no positive averment in the affidavit-in-opposition that Mr. MacDonald is still under the control of the defendant. There is also no denial of the fact that he is an important witness. It is alleged that the allegations that Mr. MacDonald declined to come to India due to his illness and the medical certificate, both are inadmissible in evidence and should be rejected. It is also alleged that the defendant has taken out this application with the mala fide motive to prepare the ground for not tendering Mr. MacDonald as a witness. Other main points raised against the issue of commission are as follows—
(i) The Court would not be able to watch the demeanour of the witness.
(ii) It may be necessary to consult the records in the office of the plaintiff to check up the correctness of the evidence of the witness as also to confront him with such documents. Those documents being voluminous, it would not be possible for the defendant to carry them to U.K As a result, the plaintiff may be deprived from effectively cross-examining Mr. MacDonald if he is examined in England.
(iii) There are innumerable Exhibits in this suit and for the purpose of cross-examination, it may be necessary to show these Exhibits to the witness. It is not permissible to take away the Court's records from the custody of the Court. Hence the plaintiff would be deprived from effectively cross-examining this witness.
(iv) The defendant has caused various documents to be produced in Court under subpoena from various authorities. Those documents may be necessary at the time of cross-examination of this witness.
(v) There is racial disturbances in England and it would be unsafe to hold commission there.
(vi) If the Commission is issued, it would result in huge expenditure.
(vii) The defendant company has no assets excepting Endogram Tea Estate, the subject-matter of the suit, It is also not known whether the defendant has any assets in England.
(viii) The whole object is to make the expenses of the suit prohibitive so far as the plaintiff is concerned.
(ix) The Reserve Bank will not grant its sanction for the huge expenditure of foreign exchange.
3. The application was heard on 3-5-79 when Mr. R.C Deb, appearing on behalf of the plaintiff questioned the qualification of Mr. P.W Isaac to issue the medical certificate relied on by the petitioner. Thereupon I gave leave to the petitioner to file a supplementary affidavit describing in full the qualifications of Mr. Isaac and directed the plaintiff to file an affidavit in reply if necessary. Pursuant to that order, the petitioner affirmed an affidavit on 10-5-79 and the plaintiff filed his reply on 15-5-79. It appears from the averments in the supplementary affidavit that Mr. P.W Isaac is highly qualified.
4. Hearing of this application was resumed on 16-5-79. Mr. R.C Deb submitted that Court should not take any notice of the medical certificate as it was not supported by the affidavit of Mr. P.W Isaac. The certificate is also extremely vague and should be rejected He relied on (1977) 81 Cal WN 31 (Meghmal Ghose v. Indu Bhasan Ghose) in which the Division Bench of this High Court had set aside an order of commission issued by the learned trial Court on the basis of a medical certificate unsupported by the doctor's affidavit and/or without taking his evidence, The Division Bench in this case, following AIR 1924 Cal 991 and AIR 1950 Cal 173 held that a medical certificate could not be an evidence by itself. The Court should insist on either the examination on oath of the doctor who gave the certificate or the same should be supported by his affidavit. This judgement was delivered on 7-6-1976 before the amendment in O. 28, R. 1 of the CPC came into force. The Amendment Act of 1976 (No. 104 of 1976) introducing the Explanation to R. 1, was assented to be the President on 9-9-1976. So this case does not help us because the petitioner is relying on this amendment. Mr. Bhabra appearing in support of the application submitted that this Explanation has relaxed the law. As a result, the Court can accept a medical certificate without the supporting affidavit of the doctor, concerned. Order 28, R. 1 after amendment stands as follows:—
1. Cases in which Court may issue commission to examine witness. - 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.
(Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.
Explanation - The Court may, for the purpose of this rule, accept a certificate purporting to be signed be a registered medical practitioner as evidence of the sickness or infirmity of and person, without calling the medical practitioner as a witness).
5. According to Mr. Bhabra, R. 1 deals with the general power of Court to issue commission. Court can issue commission for examination of an exempted person residing within jurisdiction or a sick or infirm person who are unable to attend the Court. The word “or” clearly signifies that the two types of persons mentioned in this rule should be read disjunctively so that the sick or the infirm person may not be a resident within the jurisdiction of the Court. The Explanation will apply in case of a sick or an infirm person irrespective of the fact that he is residing within or outside the jurisdiction. Mr. R.C Deb, on the other hand, submitted that the requirement of R. 1 is that both the exempted person and the sick or infirm man reside within the jurisdiction and the Explanation will apply only in cases where the witness is a president within jurisdiction. According to him this will be clear from the wording in the Explanation “for the purpose of this rule”. Hence this Explanation would apply only to R. 1 and should be construed with reference to R. 1. In the present case the medical certificate has been issued in respect of a foreigner residing out of India. Hence the Explanation has no application. The old law that medical certificate must be supported by an affidavit of the doctor is still a good law in the present case. He relied on AIR 1950 Cal 173 (Sris Chandra Nandy v. Sm. Annapurna Ray) in support of his contention. In that case it has been held that a medical certificate tendered in support of an application for the issue of a commission for examination on the ground of illness is inadmissible in evidence being the worst form of hearsay evidence. The doctor himself should be called to give evidence.
6. If the construction put by Mr. Deb is accepted, it would result in a anomalous position in the sense that if a commission has to be issued to examine a sick or infirm witness residing within jurisdiction, the Court will accept the supporting medical certificate even if the same has been issued by a doctor fresh from medical college but if a sick witness is residing south of Acharya Jagadish Bose Road Calcutta, and an application is made with a medical certificate issued by the most eminent doctor in Calcutta, his certificate could not be accepted by Court unless it is supported by his affidavit. The legislature could not have intended to create this anomalous position when the Explanation was introduced by way of amendment. There could be no justification or logic in accepting one medical certificate unsupported by the doctor's affidavit as admissible while rejecting a similar medical certificate as inadmissible only on the ground of residence of the witness concerned. I have carefully considered the entire scheme of O. 26 of the CPC. Normally, a witness residing within the jurisdiction can be compelled to attend Court for giving evidence as provided under O. 26 of the Code. Order 26, R. 1 is an exception to this general rule. If the witness residing within the jurisdiction is an exempted person then a commission has to be issued. A commission has also to be issued if a sick or infirm person has to be examined. Order 26, R. 4 describes the class of persons for whose examination a commission may be issued. The grounds for issue of commission under R. 4 have been expressly mentioned in this rule. The proviso to R. 4 lays down that if a person cannot be ordered to attend, court under Order XVI, Rule 19 of the Code, a Commission shall be issued. Rule 5 applies in case of a foreign resident. If court thinks that he is a material witness, that is a sufficient ground for issue of a commission and that is why no other ground is mentioned in Rule 5. The ground of sickness or infirmity of a foreigner is immaterial for the issue of a commission under Rule 5. But what happens, if for the examination of a foreign resident, sickness or infirmity is taken as an additional ground? Would the Explanation to Rule I of Order XXVI apply? Or the old rule that the medical certificate must be supported by the doctor's affidavit should be adhered to? Did the legislature, while introducing this Explanation, intend that court will decide about the admissibility of a medical certificate on the basis of the residence of the ailing witness? Why an unsupported medical certificate should be treated as evidence of illness in one case and be rejected in another case? If Order XXVI, Rule I is construed with literal approach” as Mr. Deb has done, the inevitable result would be the anomalous position mentioned above. But one would wonder what residence of the witness has got to do with the determination of the admissibility of a medical certificate? Obviously, the legislature wanted to relax the rigour of old law regarding the admissibility of a medical certificate by introducing the Explanation to Rule I by way of amendment. If so, did the legislature want that the benefit of this amendment would be enjoyed only by the sick persons who resided within jurisdiction and the sick and infirm men residing outside jurisdiction would be deprived of the benefit of this amendment? It would be preposterous to suggest that this sort of distinction was intended to be created by the legislature. The legislature could never intend that the residence of the witness will be the deciding factor for determining the admissibility of a medical certificate. In an application for issue of commission on the ground of health, the most important document is the medical certificate on the basis of which the court will come to the decision as to whether a commission should be issued or not. The place of residence of the sick witness is immaterial for this purpose. Therefore the literal construction will not help in this matter. Such construction would result in a position which is not only anomalous but is positively unjust and unreasonable. If the object or the purpose of the Explanation was to relax the old law then the whole object would be defeated in cases of sick or ailing persons residing outside the jurisdiction of the court concerned. This difficulty can be removed it. instead of literal approach, this Explanation is construed with the purposive approach. In Karnmins v. Zenith Investments Ltd. reported in (1971) AC 850, Lord Diplock had used purposive approach in construing Section 29(3) of the Landlord and Tenant Act of 1954. At page 880 he held:
“A conclusion that an exception was intended by Parliament, and what that exception was, can only be reached by using the purposive approach.”
7. Again at page 881 he held:
“The rule does not depend on the precise words of prohibition which are used. They vary from statute to statute. In themselves they contain no indication that any exception to the prohibition was intended at all. It is thus impossible to arrive at the terms of the relevant exception by the literal approach, viz., imputing to Parliament an intention not to impose a prohibition inconsistent with the objects which the statute was designed to achieve, though the draftsman has omitted to incorporate in express words any reference to that intention.”
8. Construing this Rule I and its Explanation with this purposive approach, it is clear that the sick or infirm person mentioned in Rule I should be read disjunctively from the “exempted person” mentioned in the rule as submitted by Mr. Bhabra so that the qualification of being a resident within jurisdiction in Rule I will not be applicable to these sick and infirm persons. The words “For the purpose of this rule” mentioned in the Explanation, referred only to “sickness” and “infirmity” mentioned in Rule I and did not make any reference to the place of residence of the sick on infirm witness. In my opinion, the intention, purpose and object of the legislature was that in all cases of an application for issue of commission an the ground of health, Explanation to Rule I will be applicable irrespective of the place of residence of the sick and infirm persona. This benefit will be available to all the sick and infirm witnesses whether reading within or outside the jurisdiction or in a foreign country.
9. This “purposive approach” has been approved by the House of Lords Stock v. Frank Jones (Tipton) Ltd., reported in (1978) 1 WLR 231:—
“It is now fashionable to talk of purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the Judiciary in interpreting an act to seek to interpret it according to the intent of them that made it.”
10. In my opinion the Court faced with this type of situation while interpreting a statute should ask himself the question that if the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A Judge must not alter the material of which it is woven, but he can and should iron out the creases.
11. Although I have held that a medical certificate unsupported by a doctor's affidavit is admissible in every case, the court cannot act on it unless it contains the name of the disease, he condition of the patient, and other relevant particulars on the basis which court can come to a finding that it would be risky for the patient to attend court. If, however, the certificate is insufficient, vague and lacking in material particulars, court would refuse to pass any order. The medical certificate relied on by the petitioner in the present case does not mention the name of the skin disease nor the seriousness of the illness. It only says that it will be “undesirable” for the patient to travel and expose himself to the hot weather. What is this disease? Why it is “undesirable” to travel? What risk the witness would run if he comes to India? Nothing is to be found in this certificate. This medical certificate useless and no court can act on it and it must be rejected.
12. The present application, however, comes under Order XXVI, Rule 5 of the CPC for the examination of the witness residing outside India. For issue of a commission under this rule court has to consider whether the evidence of the person is necessary or not In the present case, witnesses on behalf of both the parties have made several references to Mr. Macdonald and both the parties are relying on certain statements made by him. Some of his letters have been disclosed by the parties to the suit. He was the chairman of the defendant company during the relevant time. There is no doubt that he is an important witness in this suit. Mr. Deb, however, opposed this application on nine several grounds set out earlier. According to him if commission is issued, the court ill not be able to see the demeanour of the witness. Situation may arise when it might be necessary to conform the witness with some records in the possession of the plaintiff. These records being voluminous, it would be extremely inconvenient for his client to carry them to U.K In support of his contention Mr. Deb relied on AIR 1924 Cal 971 (Panchkari Mitra v. Panchanan Saha) at page 973:—
“At the same time the importance of hearing 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 them confronted or identified should not be altogether lost sight of.”
13. That was an application under Order 26, Rule I of the CPC. As the witness in that case was residing within the jurisdiction and could be compelled to attend court the order for commission was set aside on these grounds. In the present case the witness being a foreign resident, he cannot be compelled to attend court. The refusal to issue commission may seriously prejudice the defendant inasmuch as they may not be able to examine this important witness at all. The next objection is that there are innumerable documents tendered in suit as Exhibits and several other records have been produced under subpoena and are lying in court. As these documents cannot be removed from court the same cannot be shown to the witness if he is examined in England. This difficulty can be avoided by authorising a responsible officer of this court to carry these documents to England for the purpose of this commission. No prejudice would be caused to the plaintiff in that case. The objection on the ground of racial disturbance in England cannot be entertained. The possibility of huge expenditure should not stand in the way. AIR 1963 Mad 103 para 7 is a clear answer to this objection:—
“‘Inconveniences’ and ‘expenses’ are inevitable components of every law suit, and both sides have a full measure of them. No party can gain an advantage over his adversary to suit his own convenience”.
14. On this point, Mr. Bhabra relied on (1970) 3 SCC 258 : AIR 1971 SC 61 (Filmistan (Pvt.) Ltd. v. Bhagwandas Santprakash) para 2 of which is as follows:—
“The order under appeal is essentially a discretionary order. We do not think that a case is made out for interfering with the discretion of the, learned trial Judge. The fact that the witness examined on commission cannot be effectively cross-examined or their examination will entail heavy costs are not the sufficient circumstances to interfere with the discretion of the learned trial Judge.”
15. The court should not refuse to pass an order for commission on a grounds of “inconveniences” or “expenses” particularly on an application under Order XXVI, Rule 5 where inconveniences and expenses would be inevitable. The plaintiff is also opposing this application on the ground that the defendant may not have much assets to defray the expenses, This is of the consideration on the basis on which the court would refuse to issue a commission if otherwise it is a fit case for issue of commission. The next point is that the petitioner may not be able to obtain the sanction from the Reserve Bank for the foreign exchange. It would be the duty of the applicant of obtain such sanction. This consideration is irrelevant at this stage. The court should not refuse to pass an order anticipating that this sort of difficulty may arise in future. In the premises there will be an order appointing Mr. Parbati Prosonna Ghose, Barrister-in-law as the Commissioner to take evidence of Mr. Alan Fulton Macdonald in terms of prayer (a) of the Notice of Motion. There will be also an order in terms of prayer (c). The remuneration of the Commissioner will be settled later on. The Commissioner, at a meeting of the parties, will decide, as to who out of the two officers of this court - Mrs. Madhuri Ghose or Mr. Bhaskar Mukherjee, will accompany them to U.K with the records of the suit. The officer so selected, will be personally responsible for the sate custody of all the exhibits tendered in the suit as also for all records produced under subpoena and deposited in Court by both the parties to the suit until such documents are returned to Court. For this purpose, the officer concerned will prepare 2 complete lists of Exhibits and 2 complete lists of Unexhibited documents and get all the four lists signed by the Advocates on record of both the parties.
16. One copy of the signed list will be deposited with the Registrar O.S and one copy will be taken by the officer concerned with him along with the Exhibits and other records. After the documents are returned back to court, the Advocates on Record of both the parties as well as the officer concerned will check up the documents and certify that all documents have been safely returned to court. The petitioner would deposit Rs. 25000/- with the plaintiff's Advocate on record within a fortnight from date. The entire costs of the commission in England including the casts of boarding and lodging of 3 counsel for the plaintiff as well as the entire costs of the Commissioner and the Officer of court who will accompany him will be on the petitioner at the first instance. The Commissioner will be entitled to engage a stenographer whose remuneration will be fixed by the parties at a meeting. The commission is made returnable within one work after the long vacation. Cost of this application will be cost in the cause. Liberty to mention.
17. The petitioner will make application to the Reserve Bank of India on behalf of the plaintiff for three persons to go on commission. The plaintiff will also be at liberty to apply to the Reserve Bank of India for foreign exchange for additional two persons representing the plaintiff and the costs thereof will be paid and borne by the plaintiff.
18. All parties including the Commissioner and the Reserve Bank of India to act on a signed copy of the minutes on the usual undertaking and the Reserve Bank of India is also directed to deal with the said applications expeditiously.
19. Order accordingly.