Pratibha Bonnerjea, J. - (1.) This is an application by the defendant for issue of a commission to examine Mr. Alan Fulton Mac-Donald at No. 59 Penn Hill Avenue, Parkstone, Dorset in England. It is alleged in the petition that Mr. Mac-Donald was the Chairman of the defendant company from 1-1-76 to 30-12-77 and during his tenure of service he had written several letters which were relied on by both the parties in the present suit. It is further alleged that the witnesses of both the parties have referred to him several times. Mr MacDonald has retired from service and at present is not under the control of the petitioner. He is 54 years old and is a permanent resident of Britain and as such he cannot be compelled to come to India for giving evidence. In para 13 of the petition, it has been alleged that the petitioner had made all arrangements to bring Mr. MacDonald to India to give evidence in the suit. But in March 1979, when the petitioner's Director Mr. Pepperell requested Mr. MacDonald to come to India for giving evidence, he declined to do so on the ground that he had been suffering from severe skin infection since Jan. 1979 and had been advised by the doctor not to travel and expose himself to the hot climate. The petitioner relied on a medical certificate issued by one Mr. P. W. Isaac, M.A.B.B., B. Chir of No. 100 Penn Hill Avenue, U. K.
(2.) There is no positive averment in the affidavit-in-opposition that Mr. MacDonald is still under the control of the defendant. There is also no denial of the fact that he is an important witness. It is alleged that the allegations that Mr. MacDonald declined to come to India due to his illness and the medical certificate, both are inadmissible in evidence and should be rejected. It is also alleged that the defendant has taken out this application with the mala fide motive to prepare the ground for not tendering Mr. MacDonald as a witness. Other main points raised against the issue of commission are as follows -- (i) The Court would not be able to watch the demeanour of the witness. (ii) It may be necessary to consult the records in the office of the plaintiff to check up the correctness of the evidence of the witness as also to confront him with such documents. Those documents being voluminous, it would not be possible for the defendant to carry them to U. K. As a result, the plaintiff may be deprived from effectively cross-examining Mr. MacDonald if he is examined in England. (iii) There are innumerable Exhibits in this suit and for the purpose of cross-examination, it may be necessary to show these Exhibits to the witness. It is not permissible to take away the Court's records from the custody of the Court. Hence the plaintiff would be deprived from effectively cross-examining this witness. (iv) The defendant has caused various documents to be produced in Court under subpoena from various authorities. Those documents may be necessary at the time of cross-examination of this witness. (v) There is racial disturbances in England and it would be unsafe to hold commission there. (vi) If the Commission is issued, it would result in huge expenditure. (vii) The defendant company has no assets excepting Endogram Tea Estate, the subject-matter of the suit. It is also not known whether the defendant has any assets in England. (viii) The whole object is to make the expenses of the suit prohibitive so far as the plaintiff is concerned. (ix) The Reserve Bank will not grant its sanction for the huge expenditure of foreign exchange.
(3.) The application was heard on 3-5-79 when Mr. R. C. Deb, appearing on behalf of the plaintiff questioned the qualification of Mr. P. W. Isaac to isuse the medical certificate relied on by the petitioner. Thereupon I gave leave to the petitioner to file a supplementary affidavit describing in full the qualifications of Mr. Isaac and directed the plaintiff to file an affidavit in reply if necessary. Pursuant to that order, the petitioner affirmed an affidavit on 10-5-79 and the plaintiff filed his reply on 15-5-79. It appears from the averments in the supplementary affidavit that Mr. P. W. Isaac is highly qualified.;