Maintainability of appeal against the order of rejected.

V. RAMASWAMI, J. :- This is an appeal against the rejection of an application filed under O.16, R.19 civil P.C. read with S.9 of the Company Court Rules, for the issue of a subpoena to a witness residing at Bombay, directing him to attend and give evidence in a company petition in which the appellant is the respondent.

2. The learned Judge dismissed the application on the ground that O.16, R.19 is not applicable to a case where the witness resides beyond a distance of 500 kilometers, and since Bombay is beyond 500 kilometers, the Court cannot issue any order directing the witness to attend in person to give evidence and that the applicant must make his own arrangements to secure the evidence of the witness.

O.16, R.19 C.P.C. reads as follows:

"19. No one shall be ordered to attend in person to give evidence unless he resides -

(a) within the local limits of the Court's ordinary original jurisdiction, or

(b) without such limits but at a place less than one hundred or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than five hundred kilometers distance from the Court house.

Provided that where transport by air is available between two places mentioned in this rule and witness is paid the fare by air, he may be ordered to attend in person."

3. The learned Judge was of the view that R.19 (b) prescribes a distance limit for issue of orders to witnesses to attend in person to give evidence and that the proviso makes no relaxation to the above prescription. We are unable to share this view. R.19 (a) deals with cases where the person to be called as a witness resides within the local limits of the Court's ordinary original jurisdiction, and R.19 (b) deals with cases where he is residing outside the Court's ordinary original jurisdiction. In cases where he resides outside the jurisdiction, the Rule provides (a) if he is at a place less than 100 kilometers, or (b) if he is residing in a place less than 500 kilometers but there is a railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate, the Court can issue a summons calling upon him to attend in person and give evidence in the suit or proceedings. The proviso should, therefore, deal with a case where the witness resides beyond the distance of 500 kilometers. The proviso talks of two places mentioned in the rule. The two places mentioned in R.19 (b) are the place where the witness resides and the place where the Court is situate. Therefore, when the proviso speaks of payment of air fare and calling the witness, we are of the view trial it relates to a case where Cl.(a) or Cl.(b) of R.19 is not applicable. It is true that it is plausible to argue that whereas in the case of a person residing beyond the local limits of the Court but within 500 kilometers, there is a discretion vested in the Court to call the witness under Cl.(b), if the applicant is willing to pay the air fare of that witness, no discretion is vested in the Court, and the words "he may be ordered to attend in person" occurring in the proviso should be read as "shall be ordered to attend in person". But we think that the more reasonable and just way of reading the provision is that the proviso is applicable to a case where the witness is residing at a place beyond a distance of 500 kilometers. We are, therefore, unable to agree with our learned brother that the proviso makes no relaxation to the distance rule provided under Cl. (b) of R.19.

4. Since the learned Judge did not go into the merits of the application as to whether he would or would not issue the subpoena, we think it

desirable to remind the matter for fresh disposal.

5. The learned counsel for the respondent contended that an order refusing to issue a subpoena to a person to attend in p