JAGANNATHA SASTRY Vs. SARATHAMBAL AMMAL

JUDGEMENT

(1.) In this case the lower Court refused to issue a Commission for the examination of two of the petitioner's witnesses, who live more than 200 miles from the Court-house, and cannot therefore be compelled to attend by ordinary process.

(2.) The petitioner contends that, as a matter of law, the Court was bound to issue.a Commission. The respondent contends that it was entirely a matter for the discretion of the Court. The point is one on which reported authorities speak with an uncertain voice.

(3.) The practice in English Courts undoubtedly is that it is a matter of judicial discretion for the trying Court to issue a commission, and the Calcutta High Court has usually interpreted the pertinent sections of the old and the present Civil Procedure Codes in that sense: vide cases reported in Amrith Nath Jha V/s. Dhunput Singh Bahadur (1873) 20 W.R. 253, Adamji Khadi Bhai V/s. Issuf Ahmed Mulla (1912) 16 I.C. 750, and A.E. Saleji V/s. Ahmed Munsaji Salaji (1913) 19 I.C. 643; though in the 20 W.R. case, it was held that, ordinarily, where the witness is a stranger residing beyond the limit fixed by law for the service of direct process, and is not a person under the control of the party applying for the commission, such a commission should issue. The Calcutta case in Huree Bass By sack V/s. Meer Mdzzum Hossein (1871) 15 W.R. 447 may be read as laying down that a party has a legal right to have a commission issued. In the Madras High Court, a single Judge in Chinnu V/s. Sambandha Moorthi (1914) 23 I.C. 522 held that the matter is one of judicial discretion, while a Bench in Sitaramma v. Subraya held that it was a matter of statutory right. From the arguments in the latter case it clearly appears that the issue argued was whether a party had a statutory right to a commission or whether the Court had discretion to refuse it, and the Court held that the former view was correct. In Veerabadran Chetty V/s. Nataraja Desikar (1904) I.L.R. 28 Mad. 28 though the matter of the issue of a commission to a witness more than 200 miles from the Court house did not arise, it was held that the Court had power to refuse direct procees in its inherent power to prevent abuse of its process.