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Original Suit No. 263 , of. 1948, decided on. 9th December 1949.

Civil Procedure Code (V of 1908), O. XXVI, r. 4‑Commis sion, issue of‑Whether desirable when it is important that de meanour of witness be seen and his precise answer to question put to him be heard by trial Court and that defendant should get fullest opportunity of cross examination Commission should not issue in such case.

When it is important that the demeanour of the witness should be seen and his precise answer to the question put to him should be heard by the judge, or the Judge or jury, who have to decide the case, and that the defendant should have the fullest opportunity of cross‑examining him, they being really only able to do that effect ually when the witness is in Court, and his demeanour, and the way in which he answers the questions, can be judged of by the judge and by the jury, it would not be just to issue a commis sion for the examination of witness.

L. R.‑(1881‑82) 22 Chancery Division 764, relied on.

Parmanand, for Plaintiff.

Choithram, for Defendant No. 2.

--This is an application under Order 26, Rule 4, Civil Procedure Code, for the issue of commission to examine the plaintiff in the United Kingdom. The suit is for the recovery of Rs. 4,176‑9‑0 being the cost of a Tank and Pedestal which the plaintiff alleges to have supplied the defendant 1: It is a suit for work and labour done and materials supplied. Before the Tank and Pedestal could be supplied to defendant 1, the plaintiff sold his business to defendant 2, and defendant 2 claims that the cost of the Tank and Pedestal are payable to him and not to the plaintiff'. The plaintiff has, therefore, brought the suit against both defendants 1 and 2.

It was argued for the plaintiff that in a case like this where the cause of action had wholly arisen at Karachi he had choice of forum and, therefore, the commission should issue. It was further argued that the plaintiff's evidence is necessary in order to prove his case as the interrogatories filed together with the application appear to show. It is the plaintiff's case that his clerks and managers who were conversant with the facts of this case were Hindus, and that they are not now here, so that it becomes necessary for the plaintiff himself to give evidence in his own behalf for want of any other witness.

The application was opposed by defendant 2 on two grounds. Firstly, it was said that the plaintiff was in Karachi on 4^th September 1948 when the plaint was presented, and that he has actually signed and verified the plaint. The written statement was filed on 4th November 1948. The affidavit of the plaintiff himself, dated 8th June 1949, shows that the plaintiff left Karachi in February 1949. Defendant 2, therefore, contends that it was open to the plaintiff to have himself examined de bene esse under Order 18, Rule 16, Civil Procedure Code when the Court could have observed his demeanour, and that having failed to do so, the interests of justice do not require or make it necessary that a commission should issue to examine the plaintiff in the United Kingdom. Secondly, it was contended that the interrogatories run into as many as 57 in number. Some of these interrogatories relate to books of account and vouchers. It would have to be established that they were kept in the usual course of business which is a matter involving consider able cross‑examination and further that in a case such as this, the demeanour of a witness would be a matter of paramount importance.

The case of Berdan v. Greenwood reported in L. R. (1881‑82) 22 Chancery Division p. 764 was referred to. In that case the Court of Appeal in England set aside an order issuing com mission to examine the plaintiff at Bucharest. Cotton, L.J., at p. 767 observed:

"The Court, on the evidence before it, has to arrive at the conclusion whether it is or is not necessary for the purposes of justice that the ordinary mode in which evidence is to the taken should be departed from, and unless the Court does arrive at the conclusion that it is necessary, it is the right of the person who opposes the examination in the way pro posed, to have the evidence taken in the usual way."

And then again at page 768, the learned Lord justice says:

"But we ought to consider not merely what the plaintiff case requires, but that justice to the defendant as well as to the plaintiff requires.

And in such a case as this it is, in my opinion eminently important that the demeanour of the witness should' be seen and his precise answer to the question put to him should be heard by the judge, or the judge or jury who have to decide the case, and that the defendant should have the fullest opportunity of cross‑examining him, they being really only able to do that effectually when the witness is in Court, and his demeanour, and the N,,‑ay in whici,11 the answers the questions, can be judged of by the judge arid by the jury."

I think these principals apply equally to the case before me and, therefore, I dismiss the application under Order 26, Rule 4, Civil Procedure Code, with cost.

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