G. Ramanujam, J. - (1.)THE lower Court in this case has refused to issue a commission for the examination of two of the petitioner's witnesses one living in Bombay, and another in Goa, who cannot be compelled to attend Court by ordinary process, and the revision is directed against the said order of the lower Court. The petitioner contends that as a matter of right he is entitled to have the commission issued for the examination of the said witnesses. The Respondent, however, contends that it was entirely a matter for the discretion of the Court and that the lower Court has exercised the discretion properly in refusing to issue a commission.
(2.)THE practice in English Courts undoubtedly is that it is a matter of judicial discretion for the trial Court to issue a commission. The practice in India, however, has not been uniform. Wallace, J. in Jagannatha Sastri v. Sarathambal Ammal : AIR 1923 Mad 321 construed the word "may" occurring in Order 21, rules 1 and 4 as being imperative, that is, the Court must, when moved issued a commission. The learned Judge, after referring to the relevant earlier decisions on the point stated:
The balance of authority is in favour of the view that (1) ordinarily, in the case of a witness not under the control of the party asking for the commission, who resides beyond the limit fixed under Order 16, Rule 19(b), Civil Procedure Code a Commission should issue as a matter of right, unless the Court is satisfied that a party is merely abusing its authority to issue process, and (2) that it is not for the Court to decide whether the party will be benefited thereby or not, that is a matter entirely for the party.

In Sitamma v. Subraya : (1911) 21 MLJ 889 Abdur Rahim and Sundara Aiyar, JJ. had held that a party to a suit has a right to the issue of a commission to examine a witness beyond the prescribed distance, apart from the question whether he would be ultimately benefited by it.

(3.)IN Palaniappa Chettiar v. Narayanan Chettiar : AIR 1946 Mad 331 , Bell, J. observed that the issue of a commission to examine a witness is a matter of discretion for the Court to be exercised in the circumstances of each particular case.