The Court held that an application for examination on commission is not to be liberally treated unless it strictly comes within the purview of Order 26 Rule 4.

G. K. MISRA, J.

( 1 ) PETITIONER is the plaintiff. He filed Title Suit No. 44 of 1966 in the court of the munsif, Balasore, against the State of Orissa for a declaration that he did not encroach upon the disputed land and the order of eviction passed by the Tahsildar is not ex* ecutable against him. He also prayed for permanent injunction. His case was that he with one Gurbachan Singh had a canteen on the roadside land of orissa Trunk Road opposite to the Civil Court building In 1962. there was a proposal for construction of a Bus Stand Plaintiff was asked to vacate the site on which the old canteen stood and with the verbal permission of Sri K. C. Singh Deo. who was then the Collector as well as the Chairman of the Balasore Municipality, he shifted to the suit site and constructed a canteen The Collector of Balasore filed written statement challenging the aforesaid averments in the plaint. Plaintiff summoned Sri K. C. Singh Deo, Collector of Balasore, to be examined as a witness on his behalf on 2-11-66. An application was filed on behalf of the Collector to exempt his personal appearance in Court and to permit him to be examined on commission. The learned Munsif allowed the application of the Collector. Plaintiff has filed the revision against that order.

( 2 ) TWO questions arise for consideration in this revision, namely, (i) Was the munsif justified in allowing the Collector to be examined on commission? and (ii) Should the High Court interfere with the discretion of the trial court?

( 3 ) THE application on behalf of the Collector was to the effect that he was the executive head of the Government offices in the district of Balasore and had to attend to manv emergency matters, such as, general election and drought The collector in his application did not say on affidavit that he was so busy that he could not spare any time for being examined as a witness in Court. Where the state of Orissa itself is the defendant, it is the paramount duty of the Collector to examine himself on behalf of the defendant and pledge his solemn testimony in court that the averment of the plaintiff that he got his verbal permission was false deposing in Court in support of Government's stand is duty of great public importance Tn the absence of the evidence of the Collector that he did not give verbal permission, a Court of fact might accept the plaintiffs' version that a verbal permission had been granted.

( 4 ) THE learned Standing Counsel placed reliance on Order 26 Rule 4 (1) (c ). C.P.C which runs thus-

"4 (1) Any Court may in any suit issue a commission for the examination of- (a) (b) (c) any person in the service of the Government who cannot, in the opinion of the Court, attend without detriment to the public service. "

In order to grant exemption to the Collector, the trial court must record a finding that the Collector cannot, in his opinion attend the court without detriment to the public service. Giving evidence in court in support of the case of the Government is a public service of great importance. There were no materials on record before the learned Munsif to hold that the attendance of the Collector in court would be detrimental to public service. To arrive at such a conclusion, the statement of the collector that he was busv in election and drought matters would not be sufficient. He must place necessary materials before the Court to convince the latter that be could not get time to give evidence in court by making arrangements with his subordinates for attending to matters relating to election and drought. He must further show that he had absolutely no breathing time and it was almost impossible for him to spare any time for about an hour to appear in court. The learned Munsif had not attempted to record a finding in accordance with Order 26, rule 4 (1) (c ). His conclusion is based on pure surmises and not on any material. The substantive part of his finding may be quoted-

''issuing of a commission is purely a discretionary ma