M. PALANIAPPA CHETTIAR Vs. NARAYANAN CHETTIAR

JUDGEMENT

(1.) THE learned Counsel for the petitioner has said everything that he can say on behalf of his client, but I am satisfied that this is not a case in which I should interfere with the order of the lower Court.

(2.) THE petition arises out of an application by the defendant in a suit under Order 26, Rules 2 and 4 of the Civil Procedure Code and Section 151 for the issue of a commission to examine a witness in Madras. The suit was filed in the District Munsiff's Court, Devakottah, on a promissory note which had been executed by the defendant and had been endorsed to the plaintiff. The defendant apparently urged that the endorsement in some way or another was not valid and in support of this contention he desired to adduce the evidence of an advocate who has ceased to practice in that Court and is at present employed in Madras. He says that this gentleman was appearing in Court as an advocate in another case, in which the defendant's wife was the plaintiff and in which the endorser of the note appeared as a witness and was about to but somehow did not produce in evidence the promissory note in question. It is said that the date on which this incident occurred was subsequent to the alleged date of the endorsement, the inference being, I suppose, that the date of the endorsement is fictitious.

(3.) TWO cases have been cited to me in support of the contention that a party has an absolute right to an order for the issue of a commission to take evidence. The first was Jagannath Sastri v. Sarathambal Ammal, (1922) 44 M.L.J. 202 :, I.L.R. 46 Mad. 574, a decision of Wallace, J. There the learned Judge held that a commission should issue as a matter of right unless the Court is satisfied that the application is an abuse of the process of Court. On the finding, therefore, of the District Munsiff that this particular application was an abuse of the process of.Court this case does not support the petitioner's argument. With great respect to the learned Judge, I would not go so far as he with regard to the principles applicable to the issue of commissions. In my opinion, it is a matter of discretion for the Court in the circumstances of each particular case.