Judgement

PANIGRAHI, C. J. :- This revision is directed against an order of the Subordinate Judge, Cuttack, refusing to issue a commission for the examination of the defendants witnesses at Bezwada - a place 500 miles away from the Court at Cuttack where the suit is pending for trial. The suit was laid for recovery of damages for loss and short delivery in respect of a consignment of twenty bales of cotton yarn booked from Ambasamudram on the Southern Railway to Cuttack.

The plaintiffs case is that the consignment was found tampered with and cut with sharp instrument and resewn when he took open delivery on 9-1-1953. He complained that he suffered heavy loss due to "non-delivery and pilferage" on account of the gross negligence and misconduct of the defendant. The defendant is the Union of India representing the Eastern and Southern Railways, over whose lines the consignment travelled.

The defendant pleaded that the consignment was received at Beswada on 14-12-1952, but was looted by a riotous mob, that 14 bales out of the 20 were recovered after the looting and ten of these were found in a tampered condition. As the loss was due to circumstances beyond the control of the defendant, t