VIDYAPURNA THIRTHASWAMIAND SITAMMA Vs. SUBRAYA

JUDGEMENT

(1.) We think that the District Munsif was wrong in refusing to issue a commission for the examination of certain witnesses named in the 2nd defendant s petition dated 25th May 1908

(2.) The defendants were entitled as of light to the issue of commission apart from the question whether they would have ultimately benefited by it. It would be at their own risk that the commission would be issued. See Huree Dass Bysack v. Meer Moazzum Hossein (1871) 15W.R. 447. But it appears that there was in fact sufficient time for the return of the commission before the next date of hearing. We set aside the judgment of the appellate court and direct that commission be issue by the appellate court as prayed for by the defendants. The appellate court will dispose of the appeal after consideration of that evidence and the other evidence already on record.

(3.) We may mention that it is admitted by the learned pleaders on both sides that the only question for disposal is that relating to the plea of limitation. Costs will abide the result.