( 1 ) SHRI R. A. Roman, Counsel for the petitioner. Counsel is heard and the matter is being disposed of at the admission stage. This is defendants' petition and is directed against an order passed on 27-6-1987 by the trial court at Gwalior. That Court has allowed an application of the plaintiff to modify its earlier order. The plaintiff had prayed that although the Court had accepted her prayer for her evidence being taken on commission at Indore, where she resided, the commission issued could not be executed over a period of six years by the District Judge, Indore. Therefore, an Advocate practising at Gwalior be appointed Commissioner to take her evidence at Indore. The prayer was allowed on the condition that Commissioner's fee of Rs. 650/- had to be paid by the plaintiff, herein non-petitioner 1. It is against this order that the instant petition is filed.

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( 3 ) SHRI Roman, who appears for the defendants-petitioners, has seriously impugned the order on the ground that there was no justification in law for plaintiff to be examined on commission. Counsel has cited case-law to which I would soon advert but I would immediately say that the discretion to examine the plaintiff on commission having been exercised six years ago and against that no challenge having been made for such a long distance of time it is too late now to contest merely a modification of that order. What further needs to be stressed to buttress the conclusion is that the discretion once exercised six years ago by the trial court was re-exercised for the second time by the same Court. Under these circumstances, in this revision, this court would not, unless exceptional grounds are shown, interfere in the matter. The several provisions of law bearing on the question, to be discussed hereinafter, make it very clear that it is the trial Court which has to exercise its discretion in the matter and only when the discretion is exercised unjudicially or extra-jurisdictionally that a grievance can be made.

( 4 ) LET us look now at the law. The relevant provisions are those of O. 16, Rr. 19 and 21 and O. 26, R. 4, C. P. C. though, my attention is also drawn by Shri Roman to the provision of O. 18, R. 3-A. . According to Rule 21 of O. 16 CPC a "party" and a "witness" are not to be differentiated in the matter of giving evidence in any case. This position has to be emphasized with all seriousness and sincerity bearing in mind the constitutional imperative of fair trial embodied in Art. 39-A. . I say so for one singular reason that necessity to stress this constitutional imperative has come today when opportunity has come to do so as in decisions cited today at the Bar the attention of the Court was not drawn in any of the cases to this provision. R. 19 carries similarly a clear mandate of the legislature speaking the same language as of R. 21 when it says that "no one shall be ordered to attend in person to give evidence unless he resides within the total limits of the court's original jurisdiction. . . . . . . etc. "

( 5 ) IF the provisions of R. 4 of O. 26 are to be read meaningfully and harmoniously with those of O. 16, Rr. 19 and 21, I wonder how any argument can be made to submit that the jurisdiction and discretion of the Court underlying in Rr. 19 and 21 is in any way watered down by R. 4 of O. 26, Despite apparently having an overlapping of jurisdiction in some respects, primacy has to be attached not to the similarity of prayers which may be made at different stages of the progress of the suit but to the stage at which any application is made and the purpose for which it is made. For the purpose of commencement of the trial, summoning and attendance of witnesses is contemplated under O. 16, and I bear in mind the right emphasis of Shri Roman on the newly inserted R. 3-A of Order 18 in this connection. The Legislature has made its intention clear that the plaintiff has to appear as a witness first before the other witnesses appear and give ev