Commission for examination a defendant as witness.

This is a Civil Revision Petition under section 115, Civil Procedure Code to revise the order of the learned City Civil Judge (Fifth Assistant), Madras, directing the issue of a letter of request to the Chief Judge, Court of Small Causes at Bombay, to appoint a Commissioner to examine a witness.

The first defendant in the suit, O.S. No. 2280 of 1957, on the file of the City Civil Court, Madras, which is a private limited company, applied for the issue of a commission under Order 26, rule 4, Civil Procedure Code, to have the evidence of its manager recorded by a Commissioner at Bombay. The suit relates to an insurance claim by the plaintiff against the several defendants in the suit. The second defendant is the Insurance Company of which the first defendant is alleged to be the agent settling the insurance claims. The third defendant is the shipping company owning the steamer " S.S. Astra " which carried the goods from Naples to Madras, in respect of which the suit claim is launched. The fourth defendant is the Port Trust at Madras. The first defendant is carrying on business at Bombay, having its registered head office in that place. The application by the first defendant was resisted by the plaintiff, the third defendant and the fourth defendant. The learned City Civil Judge overruling the objections to the application, directed the issue of the commission as prayed for by the first defendant. Hence, this Civil Revision Petition has been preferred by the plaintiff in the suit.

The grounds on which the issue of commission was sought by the first defendant can best be stated in the words of the affidavit filed on behalf of the first defendant in the Court below:

"2. I state that the applicant company is not resident in Madras State and none of the directors or officers of the applicant company carries on business within the Madras State.

3. I state that the attendance of any director or officer of the applicant in Madras for the purposes of giving evidence before this Hon’ble Court will cause considerable inconvenience and expenses as the applicant company is 800 miles away from Madras City.

4.I state that my evidence is necessary on behalf of the applicant company to deny the untrue averments made by the plaintiff, and I, therefore, state that it is necessary to examine me on commission at Bombay as I am aware of the facts of the case."

The plaintiffs contended that they would be put to considerable expenses if a commission were to issue and that in any event if the first defendant were to obtain an order in its favour it must be made to bear their expenses of the commission as well. The objections on the part of the third and the fourth defendants were the same as the objections put forward by the plaintiffs. The learned City Civil Judge took into account only the alleged inconvenience and the expenses to which the first defendant stated it would be subjected to if no commission were to issue, and passed an order in its favour.

The principles that should govern the Court in issuing commission to have the evidence of a witness or party recorded are now well settled. The relevan t provisions of the Civil Procedure Code are as follows:

Order 5, rule 4- " No party shall be orderedto appear in person 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 fifty 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 two hundred miles distance from the Court-house."

Order 26, rule 1.- " Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it."

Order 26, rule 4.- " (1) Any Cour