KANJI KARSONDAS Vs. NATHUBHAI KHIMJI

JUDGEMENT

(1.) The short point which arises in this revisional application is what is the meaning and denotation of the expression "the expenses of the commission" used in O, 26, Rule 15. A suit for dissolution of partnership and accounts, No. 2 of 1952, has been filed by the opponent against the petitioners in the Court of the Civil Judge, Senior Division, at Jalgaon, on 20-2-1952. On 11-9-1952, the plaintiff applied that a Commissioner should be appointed to examine five of his witnesses who reside at Bombay, which is at a distance o more than 200 miles from the Court. The learned Judge has allowed this application. At the time when this application was considered by him, it was argued by the defendants that before the commission was ordered to be issued, the plaintiff, should be asked to deposit the costs which would be incurred by the defendants in going to Bombay before the Commissioner, This prayer has been rejected, and in the present revisional application preferred by the defendants the only point which has been raised for our decision is that the learned Judge refused to exercise jurisdiction vested in him under Order 26 Rule 15, in that he took the view that it was not open to him to call upon the plaintiff to deposit the costs of the defendants. Mr. Gokhale .says that Order 26 Rule 15, is wide enough to enable the Court to direct that the party applying for a commission should deposit the costs of the opponent before the commission is issued.

(2.) Section 75 of the Code refers to the power to issue commissions, and under Section 75 (a) commission can be issued to examine any person. Order 26 deals with several commissions exhaustively. Commissions to examine witnesses are dealt with in Rules 1 to 8 of this Order. The present case falls under Rule 4(1)(a) which provides that a Court may in any suit issue a commission for the examination of any person resident beyond the local limits of its jurisdiction. Rules 15 to 18 of Order 26 contain general provisions as to the issue of such commissions. Rule 15 deals in particular with the expenses of the commission to be paid into Court, and it is with this rule that we are concerned in the present revisional application. This rule provides that before a commission is issued under Order 26, the Court may order such sum, if any, as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued. Mr. Gokhale contends that the expression "the expenses of the commission" should be liberally construed and it should be held that the Court has the power in a fit case to direct the party applying for commission to deposit not only the expenses of the Commissioner but) also the costs of the opponent. That is how the only point which we have to consider in the present revisional application is as to the proper denotation "the expenses of the commission."

(3.) The words used are "the expenses of the commission" and not "the costs of the commission." Section 35, for instance, refers to the costs of the suit, and in exercising its jurisdiction under Section 35 it would no doubt be competent to the Court to make an order as to the costs not only of the suit as such, but other costs incidental to the suit. Rule 15 of Order 26, does not, however, use the word "costs"; but it speaks of "the expenses of the commission." In our opinion this expression has been deliberately used because in the context Rule 15 is intended to provide for the deposit of the expenses of the Commissioner and other expenses directly attributable to the issue of the commission. It is not all costs resulting from the issue of the commission which are intended to be deposited by the party under Rule 15 of Order 26. It is only the expenses of the commission which have to be deposited by him. These expenses would normally be the fees to be paid to the Commissioner and the other out of pocket expenses which may have to be incurred to secure the presence of the witnesses before the Commissioner. In other words, this expression cannot, in our opinion, be extended to include costs of the opponent's pleader or the costs which the opponent himself may have to incur to go to the place where the Commissioner is going to examine the witnesses in question. It is true as Mr. Gokhale has pointed out that under the Bombay Pleaders Act, 17 of 1920, schedule III, Rule VI, does enable the pleaders to charge fees for attending to the work of their clients in connection with commissions. Incidentally, it may be pointed out that Rule VI (b)(i) of Schedule III, Bombay Pleaders Act gives jurisdiction to the Court in its discretion to direct that no fees shall be allowed for appearing before a Commissioner if the Court while issuing the commission certifies that the presence of a pleader before the Commissioner is not necessary. Except in cases falling under this class a party would be entitled to engage the services of a pleader to appear before a Commissioner and Schedule III, R, VI, lays down the mode in which such fees would ultimately be taxed. But the fact that pleader's fees could be taxed at the end of the suit in regard to the work done by him by appearing before the Commissioner would not necessarily mean that such costs have to be deposited by the party applying for a commission under Order 26, Rule 15. Ordinarily, the costs follow the result, and when, the bills of costs are prepared, the party that loses the suit has to pay the successful party's costs all told. When a commission is ordered to be issued, the only liability imposed upon the party applying for the commission under Order 26, Rule 15, is that he would have to deposit the expenses of the commission within the time specified by the Court. Therefore, in our opinion, the expenses of the commission, must be distinguished from the costs resulting from the issue of the commission, and in the context these expenses must denote only the fees to be paid to the Commissioner and other expenses directly incidental to the issue and the execution of the commission.