A witness residing at a distance of more than 200 miles has a right to be examined on commission, whether his evidence is of any Benefit to the party examining him or not, subject to two conditions: (1) he is not within the control of the party making the application; (2) the application is not an abuse of the process of the Court or actuated by mala fides or fraud.

( 1 ) THIS is a petition under Section 115, Civil Procedure Code, to revise the order of the learned Dist. Munsif, Ongole in I. A. 405/61 in O. S. 189/60. That application was tiled under Order 26, Rule 4 and Section 151, C. P. C. for the issue of a commission to examine and record the evidence of Sri M. V. Dixit, a Hand-writing Expert of Nagpur. The suit O. S. 189 of 1960 was laid for specific performance of a contract of sale dated 25-7-57 for a sum of Rs. . 100. 00 executed by the 1st defendant, the 2nd defendant being the subsequent purchaser of the same property for Rs. 7,000. 00. The 1st defendant denied Having executed the contract of sale. The plaintiff took photographic copies of the suit document with the permission of the Court and also of the admitted signatures of the 1st defendant and sent them to Mr. Dixit. the Government Examiner of Questioned documents of Nagpur for his-opinion. He gave his opinion that the document was genuine. Thereupon I. A. 406/61 was filed for examining Mr. Dixit on commission at Nagpur. This application was dismissed by the trial Court and feeling aggrieved by this order, the plaintiff has come up by way of revision.

( 2 ) THE grounds on which the application was rejected were : (1) that the defendants will be put to enormous expense if they should go to Nagpur; and (2) that they may have to requisition the services of another expert for cross-examining Mr. Dixit. The Dt. Munsif was of the opinion that it is therefore desirable that he should himself record his evidence and appreciate the evidence properly, though the Expert is admittedly living beyond 200 miles from the Court-house.

( 3 ) SRI Gopalarao, the learned Counsel for the petitioner assails the correctness of this order on the ground that it is opposed to the Statutory provisions, and that the trial Court acted with material irregularity and illegality in the exercise of its jurisdiction. The relevant provisions of the Code of Civil Procedure nay first be referred to, in order to appreciate the contentions of the learned counsel for the petitioner. Order 16, Rule 19 C. P. C. enacts omitting unnecessary words, that any one shall be ordered to attend in person to give evidence unless he resides at a place less than 209 miles distance from the Court-house. Order 26, Rule 1 empowers the Court to issue a commission for the examination on interrogatories or otherwise of any person resident within its local limits who is exempted under the Code from attending the Court, or who is unable to attend it from sickness or infirmity. Rule 4 of the order empowers the Court to issue commission for the examination of: (a) any person resident beyond the local limits of its jurisdiction. . . . . . . . . . . . . . . . . . . (c) any person in the service of the Government who cannot in the opinion of the Court, attend without detriment to the public service. Such commission may be issued to any Court, not being a High Court, within whose local limits such person resides, or to any pleader or other person whom the Court issuing the commission may appoint. Rule 5 empowers the Court to which application is made for the issue of a letter of request.

( 4 ) THE scope of these rules was considered in a number of cases by the Madras and other High Courts. In Sittamma v. Subrayya, 21 Mad LJ 889 Abdur Rahim and Sundara lyer, JJ. laid down that a party was entitled as of right to the issue of a commission to examine a witness beyond the prescribed distance, apart from the question whether he would be ultimately benefited by it. The order of the learned Dist. Munsif, who refused to issue a commission under those circumstances was set aside. In Jagannatha Sastry v. Sarathambal Ammal, 44 Mad LJ 202: ILR 46 Mad 574: (AIR 1923 Mad 321), Wallace J. , considered the scope of Order 16 Rule 19 (b) and Order 26 Rules 1 and 4 and held in the case of a witness not under the control of the party asking for a commission, who resides beyond the limits fixed