In this case, in holding that he need not grant the application under O. 26, R. 4, C.P.C for the issue of commission for the examination of a witness, residing outside the limits fixed by O. 16, R. 19, C.P.C, the learned District Munsif appears to have missed the point of the judicial discretion involved. As Wallace, J. pointed out in Jagannatha v. Saradambal(3), and there is nothing in the later decisions of this court to contravene this dictum, where a witness is not under the control of the party asking for the commission and he resides beyond the limit fixed under O. 16, R. 19, C.P.C, it would be a proper exercise of judicial discretion to issue the commission. The remarks of Jagadisan, J. in Ramakrishna Kunwant Raj v. Hardcastle and Co. P. Ltd.(1), relate both to a party as well as a witness, and the learned Judge does emphasise that the discretion vested in a Court must be exercised in a judicial manner. Certainly, with regard to a party, and this appears to be corroborated by the observations in Md. Zackeria v. Abdul Karim Rowther(2), it would be an unusual privilege to exempt the party from attendance in Court, merely because he was living beyond the limits of jurisdiction, and permitting him to be examined on commission. Very vital factors in the appreciation of evidence, such as the demeanour of the party under cross-examination, etc., may have to be assessed, and a party ought not to be lightly permitted to escape such scrutiny, by the plea that the party is residing beyond the jurisdiction specified in O. 16, R. 19, C.P.C and is hence entitled to be examined on commission.
But, obviously, the case is very different, in the matter of a witness not under the control of the party seeking to summon him, who is resident beyond the specified limit. Particularly if the evidence of that witness is essential for the party seeking to have him examined, and he is not under the control of the party, it is very difficult to see how he could be examined otherwise than on commission, if he is resident beyond the specified limit. Clearly, the court cannot compel his attendance, and this is beyond dispute. It would of course be a different matter, if the court is satisfied that the evidence is not essential, or that this is merely a device to vexatiously protract the proceedings, or the relevance of any evidence that could be given by such a witness is very doubtful. In the present case, the witness is an assignor of the negotiable instrument, and it seems reasonable for the defendant to contend that his evidence is essential, as the defendant disputes the consideration under the document, and the factum of assignment for payment made by the holder in due-course. Of course, if the witness is willing to attend court in response to a summons, without being compelled to do so, this mode may be tried in the first instance, by summoning him. But if this fails, since the witness cannot be compelled to attend court and is not under the control of the defendant (revision petitioner), it seams reasonable to have him examined on commission. The order of the learned District Munsif is set aside, and he is directed to dispose of the application in the light of these principles. This revision petition is allowed. No costs.
V.C.S