PANIGRAHI,C.J. - (1.) THIS revision is directed against an order of the Subordinate Judge, Cuttack, refusing to issue a commission for the examination of the defendant's witnesses at Bezwada - a place 500 miles away from the Court at Cuttack where the suit is pending for trial. The suit was laid for recovery of damages for loss and short delivery in respect of a consignment of twenty bales of cotton yarn booked from Ambasamudram on the Southern Railway to Cuttack. The plaintiffs case is that the consignment was found tampered with and cut with sharp instrument and resewn when he took open delivery on 9 -1 -1953. He complained that he suffered heavy loss due to "non -delivery and pilferage" on account of the gross negligence and misconduct of the defendant. The defendant is the Union of India representing the Eastern and Southern Railways, over whose lines the consignment travelled. The defendant pleaded that the consignment was received at Beswada on 14 -12 -1952, but was looted by a riotous mob, that 14 bales out of the 20 were recovered after the looting and ten of these were found in a tampered condition. As the loss was due to circumstances beyond the control of the defendant, the defendant pleaded that he was not liable for the loss caused to the plaintiffs as it was not due to any negligence or misconduct on the part of the Railway Administrations concerned. The defendant further avers that there was no loss between Bezwada and Cuttack. The written statement was filed on 19 -7 -1954 and issues were settled on 30 -7 -3954, on which date the Court posted the suit for fixing a date for trial, to 6 -9 -1954. The suit was then posted for trial to 22 -11 -1954. Prior to that date, on 1 -11 -1954, the defendant filed a petition under O. 26, R. 4, Civil P.C. praying that the 13 witnesses mentioned in his petition may be examined on commission by the District Munsif, Bezwada. In the affidavit filed by the defendant it is stated that these witnesses ordinarily resided more than 200 miles away from the Court at Cuttack and that it would entail heavy expense to bring them to Cuttack over a distance of more than 500 miles for purposes of examination. It is further stated that it would cause serious dislocation in the administration of the Railway and considerable inconvenience to the public if these witnesses are compelled to attend the trial at Cuttack. Of the thirteen witnesses, three belong to the police department and the rest are employees of the Southern Railway, working in different capacities in different stations. The plaintiff filed a counter alleging that the witnesses being all employees of the defendant, against whom allegations are made in the plaint for non -delivery and tampering, this privilege of examination on commission should not be extended to them, particularly as this will entail hardship and loss to the plaintiff, a business firm.
(2.) THE learned Subordinate Judge negatived the contention of the defendant (petitioner) that he was entitled, as a matter of right, to have an order in his favour as prayed for. He held that since all the witnesses were under the direct control of the defendant the Court would not be justified in using its discretion in his favour. He further held that he was inclined to take this view specially because the defendant was not prepared to pay anything towards the expenses of the plaintiff for attending the examination of the witnesses on commission at Bezwada. Mr. Pal appearing for the petitioner points out that a number of similar suits estimated au 200 against the same Railway Administration are pending in different Courts in India, arising out of losses caused by riots and looting, and it is impossible for the defendant to produce in the different Courts the witnesses and records relating to the rioting. It if stated in his affidavit that the Courts at Amritsar, Bombay, Betul and Delhi and other Courts have already granted permission for the examination of such witnesses on commission at Bezwada. I am inclined to agree with the view taken by the learned Subordinate Judge that the privilege of permitting a party to examine himself or his witnesses on commission is a matter which rests on the judicial discretion of the Court trying a suit. The language of Or. 26, R. 4, Civil P.C., would Itself support this view. It says : "Any Court may in any suit issue a commission for the examination of any person resident beyond the local limits of its jurisdiction, and any person in the service of Government who cannot in the opinion of the Court attend without detriment to the public service". But there is a distinction between a plaintiff asking to be examined on commission and a defendant making such a request. The Court will not regard the case of the defendant with the same strictness as the case of the plaintiff who has chosen his own forum. What is essential is that the Court before allowing evidence to be taken on commission has to satisfy itself that the application has been made in good, faith and not for the purpose of delay and embarrassment. In Ross v. Woodford, 1894 -1 Ch 38 (A), Chitty, J. tersely put the law in the following words : "The point is whether by refusing the defendants' application I am to compel them either to give up their case or come here at great expense and inconvenience to attend the trial". It was further observed : "There are many cases where the Court has been very reluctant to accede to applications by a plaintiff to take evidence abroad, because the tribunal has been chosen by the plaintiff himself. So too, with regard to the case of a plaintiff asking for a commission to examine himself, the Court has full discretion, but it exercises that discretion strictly, and does not grant an application unless a very strong case is made out. But the case is entirely different when it is the defendant's application, and particularly that of defendant lawfully resident out of the jurisdiction, according to ordinary course of his life and business; and to compel these defendants to come over here at great expense to attend the trial or give up their case would be oppressive and unfair, and in my opinion it would be wrong to apply to the case of a defendant the principles that are applicable to the case of a plaintiff asking for a commission to examine himself".
(3.) IT was, however, strongly contended by Mr. Sen appearing for the opposite party that the matter being discretionary, this Court should not interfere with the exercise of that discretion by the Subordinate Judge in refusing the defendant's application. Undoubtedly it is a matter of discretion, but so it is in almost every case in which a Judge is called upon to give his decision. The question here is whether the learned Subordinate Judge has weighed all the circumstances of the case in arriving at his conclusion. It is impossible to lay down precisely any rule as to the cases in which this Court should interfere in discretionary matters.But where it appears clear that the correct principle has not been applied in exercising the discretion and where there is reason to think that it is likely to lead to miscarriage of justice, this Court has not only the right, but is also under a duty, to interfere so that' justice may be done to both parties. It is of course not relevant to consider whether the defendant being a Railway Administration cannot, in all human probability, bring all the witnesses to Court. Far more important is the question whether it would not involve inordinate delay and expenditure to a party. The question does not depend upon the mere capacity of the one or the other party to produce his witnesses, but whether the trial of the suit is not likely to be delayed in securing the attendance of the witnesses, one of whom lives 1200 miles and the rest more than 500 miles beyond the jurisdiction of the Court trying the case. It is with a view to avoid dislocation of public service that O. 26, R. 4, Civil P.C. vests the discretion in the Court to facilitate the examination of a person in the service of Government on commission. Rule 19, Or. 16 of the Code also provides that no person who does not reside within the local limits of the Court's ordinary jurisdiction, or within a distance of 200 miles from the courthouse, shall be compelled to attend in person to give evidence. It is on this provision that Mr. Pal relies for his contention that he is entitled, as of right, to ask for the examination of his witnesses on commission, and that this is not a matter of discretion.;