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Civil Revision No. 846 of 1961, decided on 29th June 1961.

O. XXVI, rr. 4 & 5 ----Examination of witnesses on commission‑Provisions not mandatory even if witness lives beyond jurisdiction of Court‑Discretion to be exercised judicially, considering that provisions are not misused for mala fide and dilatory tactics.

Jagannath Sastry v. Sarathambal Ammal and others A I R 1923 Mad. 321, 322 and Subbaraya Padayachi and another v. Kozhandaivel Udayar A I R 1949 Mad. 496 explained.

Hamidul Huq Chowdhury with A. M. Fazlul Wahab and H. K. Chowdhury for Petitioner.

S. R. Pal with Shahabuddin Ahmad for Opposite‑Party No. 1.

The Rule is directed against the order of the Subordinate Judge, 4th Court, Dacca, passed in Title Suit No. 87 of 1960, refusing the prayer of the defendant No. 2, petitioner for examination of the witnesses mentioned in the petition on commission at Rawalpindi, West Pakistan, beyond the jurisdiction of the Court, on the ground that adjournment of the case for that purpose at the instance of the defendant at that belated stage would be in violation of the order of the Court dated 30‑5‑1961, that the case was adjourned for fortnight on the undertaking of the lawyer of the defendant No. 2 that he will not want any further adjournment and "there will not be any further adjournment on this ground."

2. Facts of the case, shortly stated, are as follows:‑--The suit was filed by the plaintiff for a declaration of its exclusive right of exploitation, exhibition, duplication etc., of the Bengali Film "Chandranath" imported from India by defendant No. 1, who entered into a contract with the plaintiff for the sale of the same to the plaintiff in East Pakistan for a sum of Rs. 37,000 which the plaintiff paid by which a letter of credit was opened by defendant No. 1 to facilitate the importation of the Film to East Pakistan. But when the Film was imported, defendant No. 2, the present petitioner, in collusion with the defendant No. 1 in the suit, stole a march over the plaintiff and got delivery of the Film from the custom authorities and, therefore, the plaintiff filed the above suit for above relief with a prayer for injunction restraining the defendant from exhibiting, exploi ting, duplicating etc., the Film till the disposal of the suit and also for a mandatory injunction for production of the Film to the Court.

3. The suit was contested by the defendant No. 2 petitioner mainly on the grounds that the plaintiff has not acquired any exclusive right of exploitation, duplication etc., of the Film and that during the stipulated period of one year in the contract the licence for importation not having been granted to the defendant opposite‑party No. 1, the contract entered into was of no effect. Defendant No. 2 asserted that there was a contract with defendant No. 1 in pursuance of which he paid about Rs. 20;000 and got the Film from defendant No. 1.

4. As to the prayer for injunction, though the trial Court granted ad interin injunction, it was vacated against which the plaintiff moved this Court. This Court for reasons given in the judgment thought it worthwhile to have the suit heard expeditiously instead of allowing the parties in pursuing the injunction matter pending the suit which was not beneficial to either side and directed the trial Court to expedite the hearing of the suit as both the parties showed their anxiety for expeditious hearing of the suit pending in the Court of the Subordinate Judge.

5. When the records went down to the Court below and the parties were taking steps for making the case ready for expeditious hearing, it is alleged, the petitioner‑defendant No. 2 was resorting to various dilatory tactics in that he moved the Supreme Court for special leave to appeal against the order of the High Court in the injunction matter with a prayer for stay of further proceedings in the suit ; that having failed to get stay he moved the lower Court for commission to examine witnesses in India, Lahore and Rawalpindi; and that when those applica tions also were rejected then he prayed for adjournment for a fortnight to issue summons on his witnesses at Rawalpindi which was granted on the undertaking that no more adjournment would be asked for and then has filed this petition for com mission to examine his self‑same two witnesses at Rawalpindi, who are employees of the Controller of Exports & Imports under the Central Ministry; of Commerce, Labour and Industries with reference to the date of and other matters relating to licence granted to the plaintiff for importing the Film.

6. The Supreme Court though granted leave to appeal but refused the prayer for stay and ordered that the grant of leave "should not in any way interfere with the order for the disposal of the suit by the Subordinate Judge before whom it is pending in as expeditious manner as possible". This order of the Supreme Court was passed on 31st May, 1961 on the application for leave filed on 15th May, 1961. On 20‑5‑61, to which date the case was adjourned by the trial Court for fixing a date of positive hearing, the defendant‑petitioner filed two applications for commission under Order XXVI, rules 4 and 5 of the Code of Civil Procedure for examination of some witnesses in India, Rawalpindi and Lahore. Those applications were rejected on that date on the ground that there was no good reason for granting the applications and the Court fixed 30‑5‑61 for hearing of the suit.

7. When the applications for commission were rejected the defendant No. 2 petitioner filed an application for adjournment on 30‑5‑61 which was granted and the case adjourned to 14‑6‑61 on the undertaking by the petitioner to get the summons on its witnesses served by 14‑6‑61 and no further adjournment would be asked for. On 10‑6‑61 the suit was fixed for peremptory hearing on 3‑7‑61. On 16‑6‑61 defendant No. 2 filed another applica tion under Order XXVI, rule 4 of the Code of Civil Procedure for examination of the self‑same two witnesses at Rawalpindi. This application was dismissed by the order under consideration:

8. Mr. Chowdhury, the learned advocate for the petitioner, contends that undue importance was attached by the trial Court to the direction of expeditious hearing and disposal of the suit given by the High Court and the Supreme Court overlooking the words "as expeditiously as possible" and, therefore, he contends that the matter comes to this that no matter what happens justice or no justice, evidence or no evidence, the case is to be disposed of expeditiously and the application for commission was rejected on that sole consideration and not on consideration of the provisions of Order XXVI, rule 4 of the Code of Civil Procedure.

9. His second contention is that the cause of the applica tion for commission was the application of the plaintiff dated 31‑5‑61 for calling for the original documents from the Chief Controller of Export and Imports, Government of Pakistan.

10. His third contention is that the word "may" in rule 4 of Order XXVI of the Code of Civil Procedure under which his application for commission comes, has the force of a direction and not a discretion and in support of this contention he refers to the decision of Wallace, J. in the case of Jagannath Sastry v. Sarathambal Ammal and others (A I R 1923 Mad. 321, 322), and that of Subah Rao, J. in case of Subbaraya Padayachi and another v. Kozhandaivel. Udayar (A I R 1949 Mad. 496).

11. On the other hand, Mr. Pal for the plaintiff opposite party No. 1 contends from the successive prayers for adjournment of the case on various dates and on various pretexts since after the order of the High Court dated 27‑4‑1961 directing the suit to be disposed of as expeditiously as possible and after the record was received by the lower Court on 6‑5‑61 and after the framing of the issues on 11‑5‑61 and fixing of the date of hearing on 30‑5‑61 that the petitioner has been taking recourse to dilatory tactics to prevent the hearing of the suit as early as possible as directed by the High Court and also by the Supreme Court and that the attempt of defendant No. 2 petitioner has become very vigorous soon after the order of the Supreme Court on 31‑5‑61 to delay the hearing of the suit till after the disposal of the appeal in Supreme Court and thereafter as it appears from the filing of application after application, first of all for commission for examination of witnesses m India, Lahore and Rawalpindi and then for time for citing some of those witnesses and after obtaining adjournment for that purpose the petitioner filed another application for commission for examination of two witnesses at Rawalpindi as mentioned in the previous application and that other conduct of the petitioner will show that his appli cation for examination of witnesses on commission at a belated stage was a mala fide and not a bona fide application.

12. The second contention of Mr. Pal is that before granting an application for commission under Order XXVI, rule 4 of the Code of Civil Procedure, the Court is bound to be satisfied (a) that the application is made bona fide; (b) that it has been made in reasonable time so as to avoid unnecessary delay and (c) that the witnesses to be examined can give evidence material to the issue and that if these conditions are not satisfied the Court has got every right to refuse the application and the provision of Order XXVI, rule 4 of the Code of Civil Procedure is not absolutely mandatory. In support of this contention he refers to the unreported decision of this Court in Civil Revision Case No. 216 of 1961 dated 3‑3‑61 (Central Bank of India Ltd. v. Ehram Jute Baling) to which one of us is a party.

13. His third contention is that when on the application of the plaintiff the Court has directed the Controller or Exports & Imports to produce all the original documents regarding granting of licence through any officer there is no need of examin ing any employee of that department. He also faintly contended that the order rejecting the previous applications for commission is a bar to the present application for commission.

14. Now coming to consider the points raised by the learned advocates, we must say that the order of the learned Subordinate Judge does not give any such impression as Mr. Chowdhury contends. Though the learned Judge referred to the expeditious hearing order of the High Court for the purpose of showing the urgency in taking steps by the parties and what the parties should do in view of the expeditious hearing order of the High Court, he really did not base his decision on that ground. He based his decision on the fact that if for the purpose of examination of witnesses on commission the case was adjourned then it should be in violation of his order dated 30‑5‑61 adjourning the case for a fortnight on the undertaking given by the petitioner at the time of obtaining the order that no further adjournment would be asked for on this ground.

15. How far his order can be maintained in view of the provision of Order XXVI, rule 4 of the Code of Civil Procedure read with Order XVI, rule 19 of the Code, we shall deal with the same later on. But the first contention of Mr. Chowdhury is not correct. His contention is based on a total misconception of the order of the learned Subordinate Judge.

16. We are also unable to accept the second contention of Mr. Chowdhury that the cause of action for filing the application for commission arose after the filing of the application of the plaintiff on 31‑5‑61 for calling for the original documents from the Chief Controller of Exports and Imports, because the petitioner, who challenged the validity of the contract, is to prove that it is invalid on the ground alleged.

17. In this connection Mr. Pal for the plaintiff opposite party contends that when they have called for the documents, namely, the relevant Government file and all correspondence regarding the import licence of the Film in question and when they have been directed by the trial Court to be produced at the time of hearing of the suit by the Department of Commerce; Labour and Industry through the officer of the Department, there is no reason for issuing commission for examination of the two particular officers of that Department. That contention of Mr. Pal is sought to be repudiated by Mr. Chowdhury in view of the provisions of Order XVI; rule 6 of the Code of Civil Procedure read with section 139 of the Evidence Act that the witness summoned to produce a document is not a witness to be examined and cross‑examined. I think there is total misconception of the contention of Mr. Pal that there is no need of citing any depart mental officer for the purpose. What he contends is whether licence was granted within the period of contract and other relevant matters can be proved with reference to those original documents called for from the office of the Controller of Exports and Imports and no witness need be examined for the purpose and the witnesses sought to be examined are not material but only misuse of the authority.

18. Now the question is whether the Court is bound to be satisfied, before any commission is issued, at to the requirement of rule 285 of Civil Rules and Orders as contended by Mr. Pal or whether it is mandatory or obligatory on the part of the Court to issue a commission for examination of witnesses residing beyond the jurisdiction of the Court under Order XXVI, rule 4 read with Orders XVI and XIX of the Code of Civil Procedure as contended by Mr. Chowdhury.

19. We cannot contribute to the view that the provision in Order XXVI, rule 4 of the Code of Civil Procedure is mandatory or obligatory in the sense that no matter when a commission has been asked for to examine the witnesses living beyond the jurisdiction of the Court, the Court is bound to issue a commission. Suppose, if the Court finds that it is not a bona fide application but an application resorted to delay and misuse the proceeding of the Court or to harass the other party or if the Court thinks that the application has not been filed within the reasonable time or if the Court, in the facts and circumstances of the case, thinks that the witnesses cited to be examined are not material witnesses which will automatically lead to the conclusion that the pretext of examining those witnesses is nothing but a dilatory tactics and a mala fide, the Court cannot and should not grant any commission even if the witnesses live beyond the jurisdiction of the Court. Even the authorities cited by Mr. Chowdhury do not support his contention.

20. In the case of Jagannath Sastry v. Saruthambal Ammal and others, Wallace, J. at page 322 observed as follows:

"The balance of authority is in favour of the view that (1) ordinarily, in the case of a witness not under the control of the party asking for the commission who resides beyond the limit fixed under Order XVI, rule 19 (b), C. P. C. a commission should issue as a matter of right."

The learned Judge then goes on to say:

"Unless the Court is satisfied that a party is merely abusing its authority to issue process."

Mark the word "ordinarily" and the last quotation which clearly show the power of the Court to decide when to issue and when not to issue commission. Then the learned Judge observed:

"That it is not for the Court to decide whether the party will be benefited thereby or not; that is a matter entirely for the party."

But this last observation we are unable to accept without any qualification. ''though it is for the party to see whether he will be benefited by examination of a particular witness or not, we think, Court has got every right to see whether he is a material witness in the facts and circumstances of the case and how his evidence is material in view of the issues framed in the suit. Though the learned Judge in the case cited above has held that ordinarily in the case of witness residing beyond the jurisdiction of the Court it should issue commission, it is qualified by the words "unless the Court is satisfied". Therefore, satisfac tion of the Court is the sine qua non for the purpose of granting any commission even if it comes under Order XXVI, rule 4 of the c Code of Civil Procedure. That is also the view taken by this Court in the unreported decision in Civil Revision Case No. 216 of 1960 dated 3‑3‑61. Though that was a case under Order XXVI rule 5 of the Code of Civil Procedure, on which ground Mr. Chowdhury tried to make a distinction between that case and the present case, I think the same principle will apply to guide the Court to determine the question of issue of commis sion.

In that case it has been held:

"If any party wants any of his witnesses residing in foreign territory to be examined on commission, he must avail of the earliest opportunity, but if he files an application for such an examination on commission only on the date of peremptory hearing or thereafter, certainly the Court has got a discretion to grant or not to grant it . . . Mr. Pal has not been able to give us any provision where it has been laid down or any decision where it has been held that at all stages the Court is bound to issue a commission under Order XXVI, rule 5 of the Code of Civil Procedure, if the witness is a resident of a foreign country."

In that case it has been pointed out that it is not correct to say that the provisions of rule 285, of the Civil Rules & Orders can be disregarded simply because it has got no binding force of law. These rules are prescribed for showing how to give effect to the provision of the Code of Civil Procedure and do not contravene any provision of the Code of Civil Procedure. We think the same principle will apply in the case coming under Order XXVI, rule 4 of the Code and it depends upon the discretion of the Court, not arbitrary discretion but a judicial discretion, to determine after considering the facts and circum stances of each case whether it is worthwhile to issue commission under Order XXVI, rule 4 of the Code.

21. Now coming to the question whether the present case comes within this principle or not. Unfortunately, as it appears from the order of the learned Subordinate Judge, he has not applied his mind to the provisions of Order XXVI, rule 4 at the time when he rejected the first two applications for commission which he rejected on the ground that there is no reason for granting commission as all the witnesses cited were male witnesses. There is no question of male or female witness. If the witnesses reside outside the jurisdiction of the Court, Court is to consider whether it is a bona fide application for commission or it is only misusing the authority or provisions of the Act as a tactics to delay or defeat any early hearing of the case and all other matters mentioned above. In disposing of the last application also he has stated in the last sentence of his order that "the prayer for commission at this late stage is, therefore, rejected". The word "therefore" does not refer to the ground that the application was filed at a late stage but it refers to the earlier reasons that it will be in violation of the order dated 30‑5‑61 "on the undertaking that no further time will be taken by the defendant‑petitioner on this ground". This ground of the violation of the previous order is besides the matters which require consideration for the purpose of issuing commission under Order XXVI, rule 4 of the Code of Civil Procedure. But the points raised by Mr. Pal with reference to the successive attempts to have the case adjourned and also the various dates given by Mr. Chowdhury to repudiate the allegations of Mr. Pal that the application for commission was simply for delaying the hearing of the suit till the disposal of the Supreme Court appeal or to delay further have not been considered by the learned Subordinate Judge.

22. Therefore, we think the matter should be sent back to the learned Subordinate Judge to consider the application for commission for examination of the two witnesses of the defendant No. 2‑petitioner on merit in the light of the observations made above and to decide whether he should issue any commission or not in the facts and circumstances of the case.

The result, therefore, is that this Rule is made absolute and the order of the learned Subordinate Judge is set aside and the case is sent back to that Court for disposal according to law. There will be no order as to costs.

Let the records be sent down immediately.

S. B./A. H.

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