A court's refusal to issue a commission for the examination of a witness does not amount to a failure to exercise jurisdiction or illegality if the court had the discretion to grant or refuse time to the party requesting the commission and the party had not named any particular person to be examined.

SHARMA, J.

( 1 ) THIS is an application by the defendants to revise the order of the learned munsif Alwar rejecting the defendants request to direct the commissioner at dehradun to record the statement of one Ramkishan Das of the firm Mitrasen jagannath at Deharadun and arises under the following circumstances. The defendants got a commission issued for the production of certain account books of the firm Mitrasen Jagannath at Dehradun. In the first instance they named jagannath, proprietor of the firm, as witness who was to be examined and produce the account books of the firm. Subsequently, however, they omitted the name of any person and wanted a commission to be issued only for the firm mitrasen Jagannath. When, however, the Com- missioner proceeded to examine the witness, it was found that Jagannath had long since been dead. The defendants wanted to examine Bam Kishan in place of Jagannath, but the commissioner did not comply until he had received a direction from the Court issuing the commission. When the direction was sought, the learned Munsif rejected the request of the defendants saying that the proceedings of the commission had been pending for a very long time and it was for the defendants to have given the correct names in the first instance The defendants have come in revision against this order.

( 2 ) IT was argued by the learned counsel for the applicant that the learned munsif failed to exercise jurisdiction which he had to issue the commission for the examination of Ram Kishan Das under Order 26, Rule 1, Civil P. C, or at least he an illegality in not directing the record the statement of the said was contended that the defendants had not named any particular parson to be examined on commission but the firm mitrasen Jagannath and therefore the munsif should have ordered the recording of the statement of Ram Kishan Das , who was the proprietor of the firm, on commission. The rulings reported in ghulam Bimlimmmad v. Rasul Bibi, A.. R. (18) 1931 Lah. 135 : (132. C. 579), santram v. Ishwar A.. R. (20) 1933 Lah. 538 : (145. C. 329), M. G. Sheth and co. v. Ramiza Bi, A.. R. (25) 1938 mad 646 : (178. C. 290), Mrs. Zohada begam Sahiba v. Messrs. Haji Dawood Ayed Firm A.. R. (27) 1940 pat. 437 : (189. C. 468) and Bhuralal v. Kasim, A.. R. (37) 1950 Ajmer I were referred to.

( 3 ) IN Ghulam Mohammad v. Rasul Bibi, AIR (18) 1931 Lah. 135 : (132. C. 579) it was held that Order 36, Rule 1 renders it obligatory on a court to issue summons on an application made by either of the parties at any time after the institution of the suit. The Court cannot disregard the clear provisions of the civil Procedure Code in this respect even though the though the conduct of party as been scandalous and reprehensible in not complying with the orders of the Court as to the payment of the process-fee and diet money. Revision was allowed against the order of the tower Court refusing to issue summons to the witness of the plaintiff in that case. In santram v. Ishwardas, A.. R. (20) 1933 lah. 538 : (145. C. 329) an arbitrator was summoned as a witness but the court refused to summon him. It was held that the conduct of the Court in not summoning the arbitrator under the circumstances of the case was not only a material irregularity but it was an illegality and so the order passed by the lower Court filing the award and passing decree on its basis was improper. In that case it would appear that the revision was against the order filing the award and that revisions was allowed on the ground that the lower Court acted illegally in not summoning the arbitrator. In the Madras case the lower Court refused to issue the commission for the examination of the witnesses residing outside British India, whom it could not compel to appear before court. In zohada Begum Sahiba v. Haji Dawood Ayed Firm A.. R. (27) 1940 pat. 437 : (189. C. 463), too, the commission was refused for the examination of a witness living more than 200 miles from the Court