The court's discretion to permit examination on commission under Order XXVI, Rule 1, CPC, must be exercised judicially, considering all relevant factors and ensuring that the other party is not prejudiced.

( 1 ) IN the instant revisional application the plaintiff/petitioner has challenged the order No. 38 dated 9. 1. 92 passed by the Learned Munsif, 2nd Court, at Barasat in Title Suit No. 565 of 1986 by which the Learned Munsif has allowed the prayer of the defendant opposite party for examining the opposite party on commission under the provisions of Order XXVI, Rule 1 of the Code of Civil Procedure.

( 2 ) THE said application under Order XXVI, Rule 1 for such examination of the defendant on commission was made on the ground of the inability of the defendant to come before the Court because of her illness and old age and in support of the same a medical certificate was produced. Such application was contested by the plaintiff by filing an objection contending inter alia that such application does not disclose the nature of disease, condition of the patient and other relevant particulars regarding the sickness and/or infirmity or the patient.

( 3 ) MR. Ajit Kumar Roy with Mr. Kanak Kumar Chatterjee appearing for the petitioner has challenged the aforesaid order passed by the Learned Munsif on the ground that the order does not disclose any reason for allowing the application nor does it appear from the order that the objection raised by the plaintiff against the aforesaid application was considered by the Learned Munsif at all. Mr. Roy has further submitted that Order XXVI, Rule 1 of the Code of Civil Procedure under which the Court has power to permit examination of witness on commission is an exception to the general rule and the same can be permitted only when the Court is satisfied that the circumstances under which such exception can be made exist ; but in the instant case the impugned order does not disclose at all that such satisfaction was arrived at by the Learned Munsif after consideration of all matters. In this connection Mr. Roy has relied on the decisions reported in 39 Calcutta Law Journal, page 598 and 39 Calcutta Weekly Notes, page 595.

( 4 ) MR. Bidyut Kumar Banerjee with Miss Sheila Sarkar appearing for the opposite party in support of the impugned order has contended inter alia that it is clear from the order that the Learned Munsif has considered the medical certificate filed by the defendant in support of the fact that the defendant because of her infirmity due to old age and femur fracture is unable to come to Court and has allowed the application considering and accepting such medical certificate. He has further submitted that from the statement of the Learned Munsif in the impugned order that he has considered the case it is evident that after such consideration he has become satisfied about the inability of the defendant to come before the Court to depose. In this connection he has relied on a decision reported in 87 Calcutta Weekly Notes, page 1047 and has submitted inter alia that if from the records it appears mere were materials on which such satisfaction could have been arrived at, the High Court should not interfere in its revisional jurisdiction, the same being a discretionary relief.

( 5 ) IN my view, although the power of the Court under Order XXVI, Rule 1 of the Code of Civil Procedure is discretionary and the order passed under the aforesaid provisions permitting a witness to be examined in commission may not be eloquent for elaborate, it is necessary for the Court to record its satisfaction as m the existence of the circumstances under which the witness is being allowed to be examined in commission, the same being an exception to the general rule.

( 6 ) AS it has been held by this Hon'ble Court in the case of Panchkari Mitra v. Panchanan Saha and Ors. reported in 39 Calcutta Law Journal page 598 "the Court has a discretion to grant or refuse a commission but the discretion has got to be exercised judicially. If the plaintiff insists on the attendance of his witnesses in Court and the witnesses apply for their examination on commission, the Court undoubtedly will have to