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Case Number

Civil Revn. No. 94 of 1956

Attorney(S)

P.C.Chatterji
H.Sen
B.K.Pal

Judges

Hon'ble Mr. Justice Gopal Chandra Das

Acts

costs.R.G.D22. Rule

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The plaintiff sued for recovery of Rs. 2706-6-0 for non-delivery of four bales of yarn despatched from Madura to Cuttack, alleging loss due to misconduct and negligence of the railway authorities. The two defendants were the Eastern Railway (now South Eastern Railway) and the Southern Railway. The defendants pleaded that the goods were stolen from the running train, the matter was handed to the police who could not detect the thieves, and therefore the railways were not liable.

During the suit the second defendant filed (1) an application dated 1-3-1955 under Order 26, Rule 4 read with Order 16, Rule 19 of the Civil Procedure Code (CPC) to examine ten witnesses on commission at Bezwada (apparently by mistake), and subsequently (2) a petition dated 21-12-1955 to examine those witnesses at Madras by the Small Cause Court Judge. The learned Munsif allowed the second defendant to examine all ten witnesses at Madras on commission under the cited provisions. The plaintiff petitioned against that order.

Legal Issues Presented

Whether the order of the learned Munsif permitting the second defendant to examine ten witnesses on commission at Madras under Order 26, Rule 4 read with Order 16, Rule 19 CPC was legally correct.
How to reconcile the language and effect of Order 26, Rule 4 (which uses "may") and Order 16, Rule 19 (which uses "shall") when deciding whether witnesses should be ordered to attend in person or be examined on commission.
Whether it is appropriate in the interests of justice to permit the entire body of a defendant's witnesses (here ten witnesses, mostly railway employees) to be examined on commission rather than viva voce in Court.

Arguments of the Parties

Appellant (Plaintiff) — Mr. Sen

Contended that the order of the learned Munsif was contrary to law and should be set aside.
Argued that Order 26, Rule 4 confers discretion on the Court ("may" issue a commission) and that, although Order 16, Rule 19 uses "shall", when read together the court still retains discretion under O.26 R.4 whether to allow examination on commission.
Relied upon Jagannatha Sastry v. Sarathambal Ammal (ILR 46 Mad 574; AIR 1923 Mad 321) to the effect that ordinarily a commission should issue as a matter of right for witnesses beyond the limits fixed under O.16 R.19(b), unless there is abuse of process.

Respondent (Second Defendant / Opposite Parties) — Mr. Pal

Contended that the mandatory provision in Order 16, Rule 19 should govern the provision in Order 26, Rule 4.
Attempted to distinguish between plaintiff and defendant witnesses and relied on cases (Borayya v. Bamakoti Sastri and Sarat Kumar v. Ram Chandra) where courts exercised discretion to allow a defendant or a single defendant's witness to be examined on commission.
Argued implicitly that examination on commission could be proper in this case by analogy with those earlier decisions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jagannatha Sastry v. Sarathambal Ammal, ILR 46 Mad 574; AIR 1923 Mad 321	Held that ordinarily a commission should issue as a matter of right for a witness not under the control of the party asking for the commission who resides beyond the limits fixed under O.16 R.19(b), unless the Court is satisfied there is abuse of process.	The decision was relied on by counsel for the petitioner; the court noted the principle but contrasted it with other authorities and ultimately declined to follow a blanket right in the circumstances of this case (whole body of defendant's witnesses).
Mahi Tosh Ghosh v. Malin Bihari Datta, ILR 63 Cal 914; AIR 1937 Cal 163	Recognised as supporting the same effect as the Madras decision regarding issuance of commission.	Cited as consistent authority but not treated as decisive to require issuance of the commission in this case.
Satis Chandra v. Satish Kantha, AIR 1923 P.C. 73	Lord Atkinson: examination of a principal defendant on commission is highly unsatisfactory because the court cannot observe demeanour and the defendant gives evidence before the plaintiff's case is opened.	The court relied on this authority to emphasise that evidence on commission is unsatisfactory and should be limited to cases where the witness is too ill, absent, or there are other sufficient reasons.
Mowji Dharamsey v. Nemchand Naranji, ILR 23 Bom 626	Starling, J.: using judicial discretion it is the duty of the Court to refuse to grant a commission where it is not in the interests of justice.	Cited to support the proposition that courts should refuse commissions when justice requires witnesses to be examined viva voce; the court adopted this approach in refusing the Munsif's order.
Berdan v. Greenwood, (1880) 20 Ch. D. 764	Baggallay, L.J.: decisions about commissions must regard the interests of justice, including the defendant's interest in testing witnesses by cross-examination and observing demeanour.	Quoted and applied to underscore the importance of seeing witness demeanour and enabling effective cross-examination; used as an underpinning for denying commission for the full set of defendant's witnesses.
Borayya v. Bamakoti Sastri, AIR 1949 Mad 468	Authority where a defendant or a single defendant witness was examined on commission and the court exercised judicial discretion.	Noted by the court as relied upon by opposing counsel, but distinguished because those cases involved a defendant or a single witness, not the entire body of witnesses as in the present case.
Sarat Kumar v. Ram Chandra, AIR 1922 Cal 42	Another case where the court allowed commission for a defendant or a single witness; an example of judicial discretion being exercised.	Also relied upon by the respondents but was held not to be analogous to the present facts involving ten witnesses, most of whom were railway employees.

Court's Reasoning and Analysis

The court began by analysing the language of the two relevant provisions of the Civil Procedure Code:

Order 26, Rule 4 uses the word "may" and hence confers discretion on the Court to issue a commission for examination of witnesses who are beyond local limits or for specified reasons.
Order 16, Rule 19 uses the word "shall" and prescribes that no one shall be ordered to attend in person to give evidence unless they reside within specified distances or travel conditions.

The court highlighted that O.26 R.4 is discretionary while O.16 R.19 imposes mandatory limits on compelling attendance; however, the court did not accept that O.16 automatically converts O.26 into a rule requiring commission in all out-of-limit cases. Instead, it examined authorities and principles that guide the exercise of judicial discretion.

The court relied on Indian and English authorities (including Satis Chandra, Mowji Dharamsey and Berdan v. Greenwood) to emphasise the underlying principle: examination on commission is an unsatisfactory mode in many cases because it prevents the trial court from observing demeanour and limits effective cross-examination. Therefore, evidence taken on commission should be permitted only where the witness is too ill to attend, absent, or other sufficient reasons exist.

The court considered the specific facts: of the ten witnesses the second defendant proposed to examine on commission, nine (other than a Sub-Inspector of Police) were employees of the Southern Railway (clerks or guards of the goods train). The court was not convinced that their absence from headquarters would be detrimental to public service and therefore found no sufficient reason to permit their examination on commission.

The court also noted that allowing the entire body of the defendant's witnesses to be examined by commission would deprive the trial process of proper assessment of demeanour and risk unnecessary expense and waste of time for the plaintiff. The court therefore exercised its judicial discretion to set aside the Munsif's order permitting commission.

To balance practical considerations, the court directed that the trial judge should not insist that all of the defendant's witnesses be produced on the same date; the defendant should produce witnesses as available without detriment to public service and the trial court should provide reasonable accommodation for examination of the remaining witnesses.

Holding and Implications

Core Ruling: The order of the learned Munsif dated 16-1-1956 permitting the second defendant to examine ten witnesses on commission at Madras is set aside and the Rule is made absolute.

Consequences and practical effects:

The second defendant is directed to examine its witnesses viva voce in Court at Cuttack in the presence of the plaintiff, subject to reasonable accommodation by the trial court for witnesses who cannot be produced immediately.
The trial judge is instructed not to insist upon producing all witnesses on a single date and to allow production "without detriment to the exigencies of public service" where applicable.
There will be no order as to costs in the circumstances of this petition.

Broader implications: The opinion applies established principles limiting the use of commissions where the credibility and demeanour of witnesses are central; it does not state that it is announcing any novel legal precedent beyond applying these principles to the facts. The court relied on existing Indian and English authorities and exercised judicial discretion in denying the practice of examining the whole body of a defendant's witnesses on commission in the circumstances before it.

Disposition: Order of the learned Munsif dated 16-1-56 set aside; Rule made absolute; no costs.

Show full summary ...

Sudhansu Mohan Mukherji v. Union Of India And Another Opposite Parties.

1. This is a plaintiff's petition directed against an order of the learned Munsif of Cuttack allowing second defendant's petition to examine ten witnesses on commission by the small cause court judge at Madras.

2. The plaintiff commenced an action for the recovery of a sum of Rs. 2706-6-0 from the defendants for non-delivery of four bales of yarn which were despatched from Madura to the address of the plaintiff at Cuttack. The whole case of the plaintiff was that it was due to the misconduct and negligence on the part of the railway-authorities that he incurred the above loss.

3. There were two defendants to the action, the first being the Eastern Railway which is now changed to South Eastern Railway and the second being the Southern Railway. The defence of both the defendants was that there was a theft in the running train and that they handed over the case to the police and the police could not detect. Hence they are not liable for the loss suffered while the goods were in transit. During the pendency of the suit, the second defendant filed an application under O. 26, R. 4 read with O. 16, R. 19 of the CPC on 1-3-1955, for the examination of ten witnesses on his behalf at Bezwada, which apparently was a mistake, and consequently the 2nd defendant filed another petition on 21-12-1955, to examine the said witnesses at Madras by the small cause court judge, Madras.

4. The learned Munsif relving on the provisions of O. 16, R. 19 read with O. 26, R. 4 of the CPC allowed the second defendant to examine all his ten witnesses at Madras on commission by the small cause court judge.

5. Mr. Sen, learned counsel on behalf of the-petitioner, contended that the order of the learned Munsif is clearly against the provisions of law and hence it ought to be set aside. His whole contention was that according to the provisions of O. 26, R. 4, it is within the discretion of the Court to allow or not to allow a witness to be examined on commission. Thus, the language employed in O. 16, R. 19 is mandatory but when read with O. 26, R. 4, it leaves the Court to exercise its discretion.

6. Order 26, R. 4 reads as follows:

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

(a) any persons resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.

(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court. Order 16, R. 19, as is relevant for the present purposes reads as follows:

“Order 16. R. 19. No one shall be ordered to attend in person to give evidence unless he resides:

(a) within the local limits of the Court's ordinary original jurisdiction, or

(b) without such limits, but at a place less then fifty or where there is railway or steamer communication or other established public conveyance for live-sixths of the distance between the place where the resides and the place where the Court is situate less than two hundred miles distance from the Court-house.”

7. It is significant that O. 26. R. 4 uses the expression “may” whereas O. 16. R. 19 uses the word “shall”. Therefore under O. 26, R. 4, it is at the discretion of the Court to issue a Writ for the examination of a party or a witness on commission, whereas under O. 16, R. 19 it is mandatory not to compel attendance of a party or a witness on certain conditions.

8. Mr. Sen relied upon, a decision of the Madras High Court reported in Jagannatha Sastry v. Sarathambal Ammal, ILR 46 Mad 574 : (AIR 1923 Mad 321) (A). Mr. Justice Wallace held in that case that 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 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.

9. 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. It is clearly the duty of High Court to interfere, even in interlocutory proceedings rather than permit a trial to go on an illegal course, which must entail unnecessary expenses to the parties and useless waste of time.

10. To the same effect is the decision of the Calcutta High Court reported in Mahi Tosh Ghosh v. Malin Bihari Datta*, ILR 63 Cal 914 : (AIR 1937 Cal 163) (B); In Satis Chandra v. Satish Kantha, AIR 1923 PC 73 (C), the principal defendant was to be examined on commission. Lord Atkinson held that nothing could be more unsatisfactory than this mode of procedure. The principal defendant gives his evidence before the plaintiff's case has been opened or the evidence of their witnesses given.

11. The Court which has to decide has no opportunity of judging the veracity of the witness from his conduct and demeanour. All the advantage of confronting a witness accused of a fraud, with his accusers is lost. 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 reasons.

12. In the case of Mowji Dharamsey v. Nemchand Naranji, ILR 23 Bom 626 (D), Mr. Justice Starling held that it is not in the interests of justice that these witnesses should be examined in the way it is proposed, and that using a judicial discretion, it is the duty of the Court to refuse to grant the commission asked for. In coming to the above conclusion Starling, J. relied upon the decision in Berdan v. Greenwood, (1880) 20 Ch. D. 764 (E), in which Baggallay, L.J observed as follows:

“We must regard the interests of justice, the interest of the defendants as well as that of the plaintiff and of course we must consider the nature of the issues which are raised in the pleadings. One can well imagine the extreme importance to the defendants, in a case of this kind, of having the fullest opportunity of thoroughly investigating the claim and testing by cross-examination the witnesses who are called.

13. I am very unwilling to express any opinion upon the question which has been so much argued, the credibility of General Berdan, but in considering whether the examination of a witness should be taken by commission, we must have regard, at any rate, to the possibility of his not being a credible witness. If the witness is a credible witness, it is hardly material whether he gives his evidence viva voce in Court or before a commission, or by affidavit, or in any other form.

14. But we must assume the possibility of his not being a credible witness, and then it becomes of the most extreme importance that the jury or the Court which has to decide the question should have the opportunity of seeing the demeanour of the witness, and observing the way in which the various questions which are put to him in cross-examination are answered.”

15. Lord Justice Cotton in that case expressed the view:

“But we ought to consider not merely what the plaintiff's case requires, but what justice to the defendant as well as to the plaintiff requires. And in such a case as this it is in my opinion, eminently important that the demeanour of the witness should be seen and his precise answers to the questions put to him should be heard by the Judge or the Judges and jury, who have to decide the case, and that the defendants should have the fullest opportunity of cross-examining him, they being really only able to do that effectually when the witness is in Court, and his demeanour, and the way which he answers the questions can be judged of by the judge and the jury.”

16. With great respect I am in entire agreement with their Lordships of the court of appeal in England which enunciates succinctly the underlying principle of examining witnesses on commission. Mr. Pal appearing on behalf of the opposite parties contends that the mandatory provision as laid down in O. 16, R. 19 should govern the provision as laid down in O. 26, R. 4 of the CPC, and he tried to make a distinction between the plaintiff and the defendant being examined on commission. For that purpose, he relied upon two decisions reported in Borayya v. Bamakoti Sastri, AIR 1949 Mad 468 (F), and Sarat Kumar v. Ram Chandra, AIR 1922 Cal 42 (G). Those are cases in which the defendant or a single witness of the defendant were to be examined on commission; and the Court had to exercise its judicial discretion in those matters. Mr. Pal has not been able to show any case in which the entire body of witnesses (ten witnesses in this case) on behalf of the second defendant were to be examined on commission, and the Court is deprived of marking the demeanour of the witnesses in the witness box and the manner of their reply whether in examination in chief or in cross-examination, as has been observed by Cotton, L.J in the case cited above.

17. Further, in my opinion, the plaintiff would be put to unnecessary expenses and there would be useless waste of time. I have looked into the list of witnesses as furnished by the second defendant. Except the Sub-Inspector of Police, the rest of the witnesses, that is nine witnesses are the employees of the Southern Railway (defendant 2), and they are either clerks or guards of goods train.

18. I am not convinced that their absence from the headquarters would be in any way detrimental to the administration of public service.

19. Accordingly. I would set aside the order of the learned Munsif and direct that the defendant should examine his witnesses in Court in the presence of the plaintiff at Cuttack. The learned trial judge, however, will not insist upon the second defendant to produce all his witnesses on one and the same date.

20. The second defendant will produce such witnesses as are available for examination in Court without detriment to the exigencies of public service, and the trial court will give reasonable accommodation to the second defendant for examination of the rest of the witnesses.

21. In the result, the order of the learned Munsif dated 16-1-56 is set aside, and the Rule is made absolute; but in the circumstances there would be no order for costs.

R.G.D

22. Rule made absolute.

Sudhansu Mohan Mukherji v. Union Of India And Another Opposite Parties.

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Plaintiff) — Mr. Sen

Respondent (Second Defendant / Opposite Parties) — Mr. Pal

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sudhansu Mohan Mukherji v. Union Of India And Another Opposite Parties.

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