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Civil Revision No. 180 of 1962, decided on 20th December 1966.

O. XXVI, r. 15 read with S. 115‑"Expenses of the Commissioner" means fee of the Commissioner, does not include expenses of the opposite party Court directing deposit also of expenses of such party exercises jurisdiction not vested in it‑Direction revisable under S. 115.

Ordinarily expense (in expression "expenses of the Commission") means the fee of the Commissioner appointed and not 'expense of the opposite‑party'. Had the word 'costs' been used instead of 'expenses', an argument could have been available to the opposite side to say that costs means expense of the opposite‑party as well. On this view of the matter, the order of the trial Court directing deposit of expenses of the opposite party as well, was held to be legally infirm. By this erroneous interpretation of the rule, the trial Judge had assumed jurisdiction which did not vest in him.

The order was set aside.

Mian Muhammad Shafi for Petitioners.

Sh. Abdur Rashid for Respondent.

pate of hearing: 20th December 1946,

The short point that falls for determination in this revision petition is as to whether a party desiring a Court to issue an open commission for examination of its witness living beyond 200 miles of the territorial jurisdiction of the Court is to share the responsibility of expenses to be incurred by the opposite‑party for execution of that commission, such as his own expense as also the money spent on engaging a counsel. In the instant case the petitioner made an application for examination of two witnesses, one at Karachi and the other at Nokundi, through open commission. The trial Court has accepted the prayer with the rider that the petitioner will pay costs of counsel of the opposite‑party to be incurred for the purpose of execution of the commission. The only reason advanced is that because it involves engagement of counsel at both the places by the opposite‑party, the petitioner should pay the likely expenses of Rs. 300.00 in this regard.

2. Learned counsel for the petitioner argues that the relevant provision of law, namely, rule 15, Order XXVI of the Code of Civil Procedure, does not warrant such a direction when an open commission is issued. On the other hand, learned counsel for the respondent says that because the order is a discretionary order, it is not revisable under section 115 of the Code of Civil Procedure. In order to appreciate the argument, it will be advantageous to reproduce the relevant provision itself:

"Order XXVI

Rule IS.‑Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued."

The sole controversy centres round the words "expenses of the commission" mentioned in the Rule reproduced above. Ordinarily expense means the fee of the commissioner appointed and not 'expense of the opposite‑party'. Had the word 'costs' been used instead of 'expenses', an argument could have been available to the opposite side to say that costs mean expense of the opposite‑party as well. On this view of the matter I hold that the order is legally infirm. By this erroneous interpretation of the Rule, the learned trial Judge has assumed jurisdiction which did not vest in him and, therefore, I set aside the order. The parties are, however, left to bear their own costs.

3. The trial Court is directed to dispose of the case expeditiously.

A. H. Order set aside.

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