Commission to be issued provided the party is not found guilty of laches.

The petitioner is the defendant in the lower Court. He filed an application under Order 26, rules 3 and 4 of the Code of Civil Procedure praying for the issue of a commission to examine three witnesses said to be residing in Burma and over whom he has no control. Several contentions were raised by the defendant against the suit claim. I am not at present dealing with the same. The application was, however, opposed by the respondent-plaintiff on the ground that the discretion of Court ought not to be exercised in favour of the petitioner as the application is merely a ruse to protract the trial of the suit. The learned District Munsif dismissed the application mainly on the ground that he has the discretion to issue a commission having regard to the inconvenience and hardship that it will enure to the other side. As against this order, the present revision petition is filed.

The learned District Munsif in the opening portion of the effective part of his judgment states that under Order 26, rule 4, Civil Procedure Code the Court has discretion to permit or refuse a party to examine witnesses on commission and Order 16, rule 19, does not take away such discretionary power of the Court. This observation of the learned District Munsif is the main subject-matter of attack before this Court.

The learned District Munsif, in order to sustain his observation as above, relies upon two decisions of this Court, namely, Ramakrishna Kulwant Rai v. Hardcastle & Co.1and Muhammad Zackria v. Abdul Karim2. Though he referred to the decision of Wallace, J., in Jagannatha Sastri v. Sarathambal Ammal3, he apparently chose not to follow it. The point for determination is whether a party to a lis has a right to ask for the issue of a commission for examination of witnesses beyond the jurisdiction of Courts where the suit is pending, and particularly witnesses outside India. In the instant case, the petitioner wanted to examine witnesses residing in Burma. It is not seriously contended that such witnesses are not under the control of the petitioner. Order 26, rule 5, Civil Procedure Code, appears to govern the point in issue. In fact, the application has been made both under Order 26, rule 4 and Order 26, rule 5. Order 26, rule 4 and Order 26, rule 5 may be usefully extracted:

"4. (1) Any Court may in any suit issue a commission for the examination of-

(a) any person resident beyond the local limits of its jurisdiction;

(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 service of the Government Who cannot, in the opinion of the Court, attend Without detriment to the public service.

(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.

(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.

5. Where any Court to which application is made for the issue of a commission for the examination of a person residing at any place not within (India) is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request."

The language employed in both the rules are mostly similar. Prima facie, the Court appears to have a discretion in the matter of the issue of commission, since the word ‘may ‘appears in both the rules. It is one of the canons of interpretation that in certain compelling circumstances 'may' can be interpreted to mean ‘shall’. In Jagannatha Sastry v. Sarathambal Ammal1, Wallace, J., observed that the word ‘may ‘in Order 26, rules 1 and 4 means ‘Is given authority to ", and it was held that the Court in fact has no discretion to reduce a commission for examination of witnesses . in cases falling under the above rules. Whatever may be said against the issue