Wallace, J.

1. In this case the lower Court refused to issue a Commission for the examination of two of the petitioners witnesses, who live more than 200 miles from the Court-house, and cannot therefore be compelled to attend by ordinary process.

2. The petitioner contends that, as a matter of law, the Court was bound to issue a Commission. The respondent contends that it was entirely a matter for the discretion of the Court. The point is one on which reported authorities speak with an uncertain voice.

3. The practice in English Courts undoubtedly is that it is a matter of judicial discretion for the trying Court to issue a commission, and the Calcutta High Court has usually interpreted the pertinent sections of the old and the present Civil Procedure Codes in that sense: vide cases reported in Amrith Nath Jha v. Dhunput Singh Bahadur (1873) 20 W.R. 253, Adamji Khadi Bhai v. Issuf Ahmed Mulla (1912) 16 I.C. 750, and A.E. Saleji v. Ahmed Munsaji Salaji (1913) 19 I.C. 643; though in the 20 W.R. case, it was held that, ordinarily, where the witness is a stranger residing beyond the limit fixed by law for the service of direct process, and is not a person under the control of the