A.V. NATARAJA KONAR Vs. POOVALINGAM PILLAI

JUDGEMENT

(1.) THE petitioner is the defendant in the lower Court. He filed an application under Order 26, Rules 3 and 4 of the Code of Civil Procedure praying for the issue of a commission to examine three witnesses said to be residing in Burma and over whom he has no control. Several contentions were raised by the defendant against the suit claim. I am not at present dealing with the same. The application was, however, opposed by the respondent -plaintiff on the ground that the discretion of Court ought not to be exercised in favour of the petitioner as the application is merely a ruse to protract the trial of the suit. The learned District Munsif dismissed the application mainly on the ground that he has the discretion to issue a commission having regard to the inconvenience and hardship that it will enure to the other side. As against this order, the present revision petition is filed.

(2.) THE learned District Munsif in the opening portion of the effective part of his judgment states that under Order 26, Rule 4, Civil Procedure Code the Court has discretion to permit or refuse a party to examine witnesses on commission and Order 16, Rule 19, does not take away such discretionary power of the Court. This observation of the learned District Munsif is the main subject -matter of attack before this Court.

(3.) (1) Any Court may in any suit issue a commission for the examination of -