P L D 1963 Dacca 108 (PLP)

14. Now coming to consider the points raised by the learned advocates, we must say that the order of the learned Subordinate Judge does not give any such impression as Mr. Chowdhury contends. Though the learned Judge referred to the expeditious hearing order of the High Court for the purpose of showing the urgency in taking steps by the parties and what the parties should do in view of the expeditious hearing order of the High Court, he really did not base his decision on that ground. He based his decision on the fact that if for the purpose of examination of witnesses on commission the case was adjourned then it should be in violation of his order dated 30‑5‑61 adjourning the case for a fortnight on the undertaking given by the petitioner at the time of obtaining the order that no further adjournment would be asked for on this ground.

15. How far his order can be maintained in view of the provision of Order XXVI, rule 4 of the Code of Civil Procedure read with Order XVI, rule 19 of the Code, we shall deal with the same later on. But the first contention of Mr. Chowdhury is not correct. His contention is based on a total misconception of the order of the learned Subordinate Judge.

16. We are also unable to accept the second contention of Mr. Chowdhury that the cause of action for filing the application for commission arose after the filing of the application of the plaintiff on 31‑5‑61 for calling for the original documents from the Chief Controller of Exports and Imports, because the petitioner, who challenged the validity of the contract, is to prove that it is invalid on the ground alleged.

17. In this connection Mr. Pal for the plaintiff opposite party contends that when they have called for the documents, namely, the relevant Government file and all correspondence regarding the import licence of the Film in question and when they have been directed by the trial Court to be produced at the time of hearing of the suit by the Department of Commerce; Labour and Industry through the officer of the Department, there is no reason for issuing commission for examination of the two particular officers of that Department. That contention of Mr. Pal is sought to be repudiated by Mr. Chowdhury in view of the provisions of Order XVI; rule 6 of the Code of Civil Procedure read with section 139 of the Evidence Act that the witness summoned to produce a document is not a witness to be examined and cross‑examined. I think there is total misconception of the contention of Mr. Pal that there is no need of citing any depart mental officer for the purpose. What he contends is whether licence was granted within the period of contract and other relevant matters can be proved with reference to those original documents called for from the office of the Controller of Exports and Imports and no witness need be examined for the purpose and the witnesses sought to be examined are not material but only misuse of the authority.

18. Now the question is whether the Court is bound to be satisfied, before any commission is issued, at to the requirement of rule 285 of Civil Rules and Orders as contended by Mr. Pal or whether it is mandatory or obligatory on the part of the Court to issue a commission for examination of witnesses residing beyond the jurisdiction of the Court under Order XXVI, rule 4 read with Orders XVI and XIX of the Code of Civil Procedure as contended by Mr. Chowdhury.

19. We cannot contribute to the view that the provision in Order XXVI, rule 4 of the Code of Civil Procedure is mandatory or obligatory in the sense that no matter when a commission has been asked for to examine the witnesses living beyond the jurisdiction of the Court, the Court is bound to issue a commission. Suppose, if the Court finds that it is not a bona fide application but an application resorted to delay and misuse the proceeding of the Court or to harass the other party or if the Court thinks that the application has not been filed within the reasonable time or if the Court, in the facts and circumstances of the case, thinks that the witnesses cited to be examined are not material witnesses which will automatically lead to the conclusion that the pretext of examining those witnesses is nothing but a dilatory tactics and a mala fide, the Court cannot and should not grant any commission even if the witnesses live beyond the jurisdiction of the Court. Even the authorities cited by Mr. Chowdhury do not support his contention.

20. In the case of Jagannath Sastry v. Saruthambal Ammal and others, Wallace, J. at page 322 observed as follows: "The balance of authority is in favour of the view that (1) ordinarily, in the case of a witness not under the control of the party asking for the commission who resides beyond the limit fixed under Order XVI, rule 19 (b), C. P. C. a commission should issue as a matter of right." The learned Judge then goes on to say: "Unless the Court is satisfied that a party is merely abusing its authority to issue process." Mark the word "ordinarily" and the last quotation which clearly show the power of the Court to decide when to issue and when not to issue commission. Then the learned Judge observed: "That it is not for the Court to decide whether the party will be benefited thereby or not; that is a matter entirely for the party." But this last observation we are unable to accept without any qualification. ''though it is for the party to see whether he will be benefited by examination of a particular witness or not, we think, Court has got every right to see whether he is a material witness in the facts and circumstances of the case and how his evidence is material in view of the issues framed in the suit. Though the learned Judge in the case cited above has held that ordinarily in the case of witness residing beyond the jurisdiction of the Court it should issue commission, it is qualified by the words "unless the Court is satisfied". Therefore, satisfac tion of the Court is the sine qua non for the purpose of granting any commission even if it comes under Order XXVI, rule 4 of the c Code of Civil Procedure. That is also the view taken by this Court in the unreported decision in Civil Revision Case No. 216 of 1960 dated 3‑3‑

61. Though that was a case under Order XXVI rule 5 of the Code of Civil Procedure, on which ground Mr. Chowdhury tried to make a distinction between that case and the present case, I think the same principle will apply to guide the Court to determine the question of issue of commis sion. In that case it has been held: "If any party wants any of his witnesses residing in foreign territory to be examined on commission, he must avail of the earliest opportunity, but if he files an application for such an examination on commission only on the date of peremptory hearing or thereafter, certainly the Court has got a discretion to grant or not to grant it . . . Mr. Pal has not been able to give us any provision where it has been laid down or any decision where it has been held that at all stages the Court is bound to issue a commission under Order XXVI, rule 5 of the Code of Civil Procedure, if the witness is a resident of a foreign country." In that case it has been pointed out that it is not correct to say that the provisions of rule 285, of the Civil Rules & Orders can be disregarded simply because it has got no binding force of law. These rules are prescribed for showing how to give effect to the provision of the Code of Civil Procedure and do not contravene any provision of the Code of Civil Procedure. We think the same principle will apply in the case coming under Order XXVI, rule 4 of the Code and it depends upon the discretion of the Court, not arbitrary discretion but a judicial discretion, to determine after considering the facts and circum stances of each case whether it is worthwhile to issue commission under Order XXVI, rule 4 of the Code.

21. Now coming to the question whether the present case comes within this principle or not. Unfortunately, as it appears from the order of the learned Subordinate Judge, he has not applied his mind to the provisions of Order XXVI, rule 4 at the time when he rejected the first two applications for commission which he rejected on the ground that there is no reason for granting commission as all the witnesses cited were male witnesses. There is no question of male or female witness. If the witnesses reside outside the jurisdiction of the Court, Court is to consider whether it is a bona fide application for commission or it is only misusing the authority or provisions of the Act as a tactics to delay or defeat any early hearing of the case and all other matters mentioned above. In disposing of the last application also he has stated in the last sentence of his order that "the prayer for commission at this late stage is, therefore, rejected". The word "therefore" does not refer to the ground that the application was filed at a late stage but it refers to the earlier reasons that it will be in violation of the order dated 30‑5‑61 "on the undertaking that no further time will be taken by the defendant‑petitioner on this ground". This ground of the violation of the previous order is besides the matters which require consideration for the purpose of issuing commission under Order XXVI, rule 4 of the Code of Civil Procedure. But the points raised by Mr. Pal with reference to the successive attempts to have the case adjourned and also the various dates given by Mr. Chowdhury to repudiate the allegations of Mr. Pal that the application for commission was simply for delaying the hearing of the suit till the disposal of the Supreme Court appeal or to delay further have not been considered by the learned Subordinate Judge.

22. Therefore, we think the matter should be sent back to the learned Subordinate Judge to consider the application for commission for examination of the two witnesses of the defendant No. 2‑petitioner on merit in the light of the observations made above and to decide whether he should issue any commission or not in the facts and circumstances of the case. The result, therefore, is that this Rule is made absolute and the order of the learned Subordinate Judge is set aside and the case is sent back to that Court for disposal according to law. There will be no order as to costs. Let the records be sent down immediately. IDRIS, J.‑

I agree with My Lord, the Chief Justice. S. B./A. H. Rule made absolute.