P R BIZANI Vs. HANS ZUCKER BAEKER

JUDGEMENT

(1.) This revision petition is against the order of the District Judge, Adilabad, refusing to issue a commission to examine the defendant or his witnesses. In his order, the learned District Judge has adverted to the vexation caused by the defendant in residing from his attitude not to cross-examine and then accusing the Court and afterwards also not exercising the right when allowed to do so. It is also pointed out that on behalf of the defendant no attempt has been made to admit or deny the documents filed by the other side and the learned District Judge has been of the opinion that the defendant has been employing dilatory tactics. Having regard to this observation and also because where the suit is based upon the oral loan, the examination of the defendant in Court so as to enable his demeanor to be observed cannot but be considered most essential. The learned District Judge has pointed out that the defendant has not produced any medical certificates and the application is not based on grounds of illness or inability to travel the distance from Calcutta to Adilabad. In the view the learned District Judge has taken about the conduct of the defendant and of the necessity for the defendant to appear in person in court, it cannot be said that the order of the learned District Judge, in so far as the defendant is concerned, calls for interference.

(2.) Mr. Shrivastava, however contended relying upon Rule 19 or Order XVI C. P. C. that the Court trying the suit is precluded from issuing an order to any one to attend in person to give evidence unless he resides within the local limits of the Courts ordinary original jurisdiction and that therefore it is obligatory that a commission shall be issued even for the examination of the defendant. The learned advocate relied upon the decision ot Wallace J. in Jagannatha Sastry v. Sarathambal Ammal, AIR 1923 Mad 321: ILR 46 Mad 574 where the learned Judge with reference to Rule 19 of Order XVI C. P. C. stated:

(3.) Thus, a review of the authorities to this extent establishes that there can be no insistence as of right by any party to have a commission issued for the examination of any one merely because the party is outside the jurisdiction unless and until the Court is also satisfied that the real requisite for the issue of the commission is the compelling necessity and that it should not be made a tool for an abuse of the process. So it follows that any discretion which the Court can exercise both under Order XVI Rule 19 or Order XXVI Rule 4 C. P. C. has to depend upon its judicial exercise having regard to all the facts which the trial Judge is aware or possessed of. It appears to me that such is the accepted view, and this is strengthened even by the decisions of Pan-chapakesa Ayyar, J. in two of his pronouncements reported in Re; Subramanian Chettiar. AIR 1955-Mad 210 and Mohammad Zackria v. Abdul Karaim Rowther, 1956-2 Mad LJ 371; for while in the earlier case the learned Judge would not exercise the powers of revision, in the latter he did. Having regard therefore to this state of authorities which mostly concerned witnesses for a party, the position of a defendant who applies for his examination on commission, in my view, calls for stricter scrutiny and the discretion exercisable by a court must be on quite justifiable grounds. The order for the issue of a commission cannot be easily had in such a case if the partys conduct during the pendency of the suit has not been above board. Applying this test to the present case, I am of the view that the order passed by the learned District Judge in so far as he refused to issue a commission for the examination of the defendant, is unassailable.