The lower Court in this case has refused to issue a commission for the examination of two of the petitioner’s witnesses one living in Bombay, and another in Goa, who cannot be compelled to attend Court by ordinary process, and the revision is directed against the said order of the lower Court. The petitioner contends that as a matter of right he is entitled to have the commission issued for the examination of the said witnesses. The Respondent, however, contends that it was entirely a matter for the discretion of the Court and that the lower Court has exercised the discretion properly in refusing to issue a commission.

2. The practice in English Courts undoubtedly is that it is a matter of judicial discretion for the trial Court to issue a commission. The practice in India, however, has not been uniform. Wallace, J. in Jagannatha Sastri V. Sarathambal Ammal1construed the word “may” occurring in Order 21, rules 1 and 4 as being imperative, that is, the Court must, when moved issued a commission. The learned Judge, after refering to the relevant earlier decisions on the point stated:

"The balance of authority is in favour of the view that (1) ordinarily, in the case of a wit