JIWIBAI Vs. MESSERS LAXMICHAND ABASBHAI

JUDGEMENT

(1.) THIS is a revision by Jiwibai under sec. 115 of the Code of Civil Procedure. She was an objector under Order XXI, rule 58 in the court of the District Judge of Pali. She made an applicant that as she was ill, she might be examined on commission THIS application was allowed and the court ordered her to pay Rs. 20/- as commission fee and a further sum of Rs. 45/- as expenses of the counsel for the opposite party. The applicant objects to the latter part of the order and it is submitted on her behalf that it was not open to the court to saddle the applicant with costs of the counsel of the opposite party under Order XXVI, rule 15. We agree with the learned counsel that expenses of commission as provided in Order XXVI rule 15 do not include expenses of the other party other than one applying for the commission occasioned by for issue of the commission. But that in our opinion does not dispose of the matter. The order of the court below is not sepecifica-lly under Order XXXVI rule. 15. The circumstances of this case are that it was the objector herself who wanted her evidence to be taken on commission because she was ill. Generally speaking, the party cannot ask the court to issue a commission for his examining, and if a party desires that a commission should be issued for his examination, the court has power, in our opinion, to impose terms under its inherent power in such cases As has been pointed in Nripendra Bhusan Ray vs. Raja Pramathen Bhusan Deb Rav (l) Order XXVI rule 15 only provides that the court may, if it think fit, order that the party requiring issue of a commission to deposit the necessary expenses. But it does not prevent the court from making any terms that it chooses as a condition precedent to the granting of the prayer. Where the commission has to be issued as a matter of course, as for example, when a wit-ness resides more than 200 miles from the court house, these is no question of allowing any sum for costs of the opposite party. But where, as in this case, the person applying for commission is not entitled as of right to get himself examined on commission, the court has the power to impose such terms as it thinks fit as to the expenses of the opposite party also in case the commission is issued. THIS power, in our opinion is inherent in the court and is not taken away by Order XXXVI rule 15. What the court below has done is to order expenses in this case because the person applying for the issue of a commission was the objector herself and was not entitled as of right to get her evidence taken on commission. As we have already said, a party has, generally speaking, to appear in court and if he does not want to do so, he may have to pay the expenses of the other side occasioned by his examination on commission. In this view of the matter, we are of opinion that the order of the court below is correct and there is no reason to interfere with it in revision. The application is hereby dismissed. .