JUDGMENT

Niamatullah and Rachhpal Singh, JJ. - These are two applications by the Plaintiffs in suit No. 14 of 1933 pending in the Court of the Subordinate Judge, Agra. One is an application for revision of an interlocutory order, dated 4th January, 1933, refusing to issue a commission for the examination of certain witnesses residing in England. The other prays for transfer of the case to some other court. The latter is based principally on the allegation that the order of the learned Subordinate Judge, dated 4th January, 1933, excluding important evidence, is one which, if persisted in, is not likely to result in a fair trial of the suit before him.

2. It appears that the suit was instituted on the 20th February, 1932. For reasons which it is not necessary to mention issues were not framed till the 15th December, 1932, on which date the learned judge recorded an order that the parties should apply for issue of commissions for examination of witnesses by 4th January, 1933. The Plaintiff-applicant applied on that date for commissions being issued for examination of seven witnesses, three of whom were to be examined in India. As to these the learned Subordinate Judge granted the application. The remaining four, numbered in the application as 2, 3, 4, and 5, were said to be residing in England. Nos. 4 and 5 are two of the Plaintiffs in the suit. The learned Subordinate Judge rejected the application for the examination of the aforesaid four witnesses on commission. His reasons for the refusal of the Plaintiff's application are contained in the following passage:

This case started in February 1932. and now a year later application is being made for the examination of the Plaintiffs themselves on commission. This is an extraordinary state of things. During the course of one year the Plaintiffs should have realised what their case was, what they were to prove and how they were to prove it. Now for them to apply for commission for their own evidence in a country so far away as England, after all this lapse of time, is not a reasonable request, and I am not prepared to grant it.

3. The learned Subordinate Judge seems to have been of opinion that the Plaintiffs should have applied for commission for the examination of two of themselves after the institution of the suit and before the settlement of issues. In cases which are ordinarily fixed for final disposal the Plaintiff may be expected to adopt the course insisted on by the learned Subordinate Judge, but in a case of this nature it is difficult for any of the parties to examine important witnesses like the parties themselves before all the pleadings in the case have been crystalised. As already stated, the case was fixed for settlement of issues on the 17th December, 1932. It was not unreasonable for the parties to assume that statements in pleadings might be recorded before, or at the time when, the issues were framed which might, appreciably affect the pleadings previously filed. Again, parties are at liberty to produce documentary evidence, at any rate, up to the date of issues. It may be necessary for a party if he gives his own evidence, to take statements about his own documents or those produce I by his adversary. If he is to give evidence before all the documentary evidence is before the court, he may find it nt cessary to re-enter the witness box and to depose in reference to documentary evidence which was not before the court when he previously gave evidence. As a general rule, therefore, the Plaintiff is within his rights if he refrains from giving h s evidence, assuming it is otherwise possible for him to do so, before the settlement of issues and the production of all the documentary evidence. We do not think that the order of the learned judge refusing to issue a commission for the examination of the Plaintiffs on the ground already mentioned is just and reasonable. The order has not made it clear that the one year which elapsed before the settlement of issues was vaisted