The discretion of the court to issue a commission to examine witnesses is not absolute and must be exercised judicially, having regard to all the facts of the case.

( 1 ) THIS revision petition is against the order of the District Judge, Adilabad, refusing to issue a commission to examine the defendant or his witnesses. In his order, the learned District Judge has adverted to the vexation caused by the defendant in residing from his attitude not to cross-examine and then accusing the Court and afterwards also not exercising the right when allowed to do so. It is also pointed out that on behalf of the defendant no attempt has been made to admit or deny the documents filed by the other side and the learned District Judge has been of the opinion that the defendant has been employing dilatory tactics. Having regard to this observation and also because where the suit is based upon the oral loan, the examination of the defendant in Court so as to enable his demeanor to be observed cannot but be considered most essential. The learned District Judge has pointed out that the defendant has not produced any medical certificates and the application is not based on grounds of illness or inability to travel the distance from Calcutta to Adilabad. In the view the learned District Judge has taken about the conduct of the defendant and of the necessity for the defendant to appear in person in court, it cannot be said that the order of the learned District Judge, in so far as the defendant is concerned, calls for interference.

( 2 ) MR. Shrivastava, however contended relying upon Rule 19 or Order XVI C. P. C. that the Court trying the suit is precluded from issuing an order to any one to attend in person to give evidence unless he resides within the local limits of the Courts ordinary original jurisdiction and that therefore it is obligatory that a commission shall be issued even for the examination of the defendant. The learned advocate relied upon the decision ot Wallace J. in Jagannatha Sastry v. Sarathambal Ammal, AIR 1923 Mad 321: ILR 46 Mad 574 where the learned Judge with reference to Rule 19 of Order XVI C. P. C. stated:"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 16, Rule 19 (b) C. P. C. , a commission should issue as a matter of right, unless the Court is satisfied that a party is merely abusing its authority to issue process, and (2) 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. Further cm, while on the comparison of the language employed in Rule 4 of Order XXVI C. P. C. , with Rule 1 of the same Order, the learned Judge concluded that the word may in Rule 1 clearly means that, in the case of persons who owing to illness etc. are unable to attend the Court, the Court cannot refuse to issue a commission", and that therefore"it is reasonable to conclude that in Rule 4 where the same phrase is used, it has the same meaning: that is the Court must, when moved, issue a commission. "the decision, however, seeks to follow that of a Division Bench in Sitamma v. Subraya, 21 Mad LJ 889: 12 Ind Cas 74; but to my mind, this decision is of little consequence if this context in that the Division Bench appears to have been considering only the question whether in issuing the Commission the benefit to be conferred upon a party need concern the Court. After the decision of Wallace, J. , it looked as though there was no option left with any trial Court to refuse to issue a commission if the person to be examined was not within the limits of the Courts ordinary original jurisdiction or when the conditions specified in Rule 4 of Order XXVI C. P. C. are satisfied. That Rule 4 in so far as it is relevant, is in the following terms: 4 (1)"any court may in any suit issue a commission for the examination of (a)xxxxxx (b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and (c) any person in the servic