M.P.THAKKAR - (1.)Whether a party has a right to claim issuance of a commission to examine a witness residing beyond the prescribed limit of 300 miles from the court house (See Order 16 Rule 19 of Code of Civil Procedure) under Order 26 Rule 4 of the Code is the question which has been referred to a Division Bench by D. P. Desai J by his order under reference.
(2.)It appears to have been argued before the learned Judge that Dhanbai Burjorji Cooper v. Bablibai Shahpurji Sorabji 36 Bombay Law Reporter 272 was an authority in support of the proposition that no party had a right to claim issuance of a commission even in a case where witnesses were residing at a place 300 miles from the court-house. The learned Judge therefore considered it desirable to have the question resolved by a larger Bench.
(3.)D. P. Desai J. himself was of the view that except under certain circumstances a party had a right to claim issuance of a commission as a matter of course in a case where witnesses were residing at a place beyond the specified limit. He was of the view that the law laid down by Wallace J. in Jagannatha Sastry v. Sarathambal Ammal ant others A.I.R. 1923 Madras 321 was sound. A doubt regarding the correctness of this view however was expressed in the context of the observations made by the Division Bench in Dhanbai's case (36 Bombay Law Reporter 272 It is in this background that we have to resolve this controversy.
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