RAJAGOPALU PILLAI Vs. KASIVISWANATHAN CHETTIAR

JUDGEMENT

(1.) The plaintiff-respondent in this petition filed a suit; against the petitioner to recover a sum of money as commission under the usual Nattukottai Ghetti custom. The petitioner was the respondent's agent at Thaiping in the Malay States. The plaint alleged that on 14 December 1929 the petitioner agreed to go out as agent for another term to the said Thaiping, that in respect of the aforesaid commission he agreed to return 750 rings with interest, and that if he broke the contract and defaulted to go out as agent he should return another 725 rings. But the petitioner defaulted to go out as agent. Consequently the suit was laid for the- value of 750 rings with interest. The defendant stated that the breach of the contract was on the plaintiff's side and counter-claimed damages assessed at the difference between the pay which he had to accept under another principal and the pay which he would have-received from the plaintiff. The suit was filed on 26th August 1931 four days before the defendant left for Thaiping which, it is not disputed, is his usual place of residence. The defendant applied to be examined on commission which the lower Court refused. Against this order the present revision petition is filed. The order of the Court is very brief and the material portion runs as follows: The petitioner is the defendant in the suit and he has also filed a counter claim against the plaintiff. It is very essential that he should be examined in Court as the question involved is whether there was a breach of contract on his part. Under these circumstances I do not think his evidence can be allowed to be taken on commission. Petition dismissed.

(2.) The ground taken in revision is that the lower Court has failed to observe the distinction between an application by a plaintiff to be examined on commission and an application by a defendant. The two grounds which induced the lower Court to refuse the commission appear to be (1) that it was necessary to observe the defendant's demeanour in Court, and (2) that the defendant has filed a set off. It has to be observed that there has been no allegation or finding that the application was not made bona fide. As regards the English oases the leading case is Ross v. Woodford (1894) 1 Ch. 38. This was followed in Viswanatha Chetty v. Somasundaram Chetty A.I.R. 1924 Mad. 541, in revision (a decision of a single Judge) in Elvers V/s. American Motor Co. A.I.B. 1924 Lah. 475, and in Sarat Kumar Ray V/s. Ramchandra A.I.R. 1922 Cal. 42, while the converse case where permission to examine the plaintiff on commission is allowed is discussed in Muhammad Akbar Ali V/s. Herbert Francis A.I.R. 1925 Pat. 125. From these oases it would appear that the mere advantage of observing the defendant's demeanour in the box is not a sufficient reason for refusing a commission and that the failure to distinguish between applications of the plaintiff and of the defendant in such a matter is an irregular exercise of jurisdiction in which the High Court can interfere in revision. As regards the set off there is one English case quoted before me, Harmont v. Dalay (1896) 12 T.L.R. 170, where the fact that a set off was claimed was held to be no good reason for refusing commission do not wish to discuss here (as I understand it is going to be raised in the suit) the question whether the parties fill the same capacity so as to enable the counter claim to be entertained in this suit. Nor doss any delay appear to be material in refusing the issue of a commission to examine the defendant: vide Vidyapurna V/s. Sitamma (1911) 12 I.C. 74, where, after the plaintiff's case was closed, an application was made on behalf of the defendant.

(3.) On behalf of the counter-petitioner are quoted two oases Nowji V/s. Memchand (1899) 23 Bom. 626 and Veerabhadran Chetty V/s. Nataraja Desikar (1901) 28 Mad. 28. In the first of these cases the plaintiff had applied for letters of administration and the defendants filed caveats setting up a will. The will so set up was not forthcoming, each caveator alleging that it was in the possession of the other and producing only a copy of it. The learned Judge refused to issue a commission quoting certain remarks, in In re Boyse Grofton V/s. Grofton (1882) 20 Ch. D. 764 where it was said by Baggallay, L.J. In considering whether the examination of a witness should be taken by commission, we must have regard at any rate, to the possibility of his not being a credible witness. If the witness is a credible witness, it is hardly material whether he given his evidence viva voce in Court or before a commission or by affidavit or in any other form. But we must assume the possibility of his not being a credible witness, and then it becomes of the most extreme importance that the jury or the Court which has to decide the question, should have the opportunity of seeing the demeancur of the witness and observing the way in which the various questions which are put to him in cross-examination are answered.