P L D 1961 (W (PLP)

Mirza Abdul Qayum for Petitioner. Nemo for Respondent. Date of heating : 22nd March 1961. This is a revision petition under section 34 of the North‑West Frontier Province Courts Regulation, challenging an intermediary order made by the learned Senior Sub‑Judge, Peshawar, on the 12th of January 1961. in suit No. 95/1(Civil), Mst. Fatima v. Gul Hasan. By an application dated the 24th of November 1960, the petitioner, who is defendant in the suit, applied to the Court that the evidence of Maulvi Muhammad Hasan, his father, should be recorded by a Commissioner, as be was lying ill in his village Parangi Bala, in Malakand Agency. It was stated in the applica tion that Maulvi Muhammad Hasan was a very important witness in the case as he was in fact the real tenant of the suit premises, being owner of the firm, Maulvi Ghee Store, housed therein. The learned Senior Sub‑Judge granted this application on the 14th of December 1960, on payment of costs to the opposite‑party in the sum of Rs.

25. The costs were presumably awarded as the petitioner had to produce his remaining ‑evidence on that day, but instead he moved the application mentioned above. The learned Senior Sub‑Judge appointed Mr. Mahfooz Khan, an Advocate of Peshawar as the commissioner on a fee of Rs. 25 to record the statement of Muhammad Hassan. It appears that on the 12th of January 1961, the commissioner, Mr. Mahfooz Khan, pointed out that fee proposed for him was very inadequate as be was to execute the commission in the Malakand Agency. On this, the commission fee was increased by the learned Senior Sub‑Judge to Rs. 65 and it was ordered by him at the same time that the petitioner should pay a sum of Rs. 50 to the counsel for the opposite‑party. It is not expressly stated in the order as to why this sum was being allowed to the counsel, but it is apparent that it was made to cover his expenses in connection with the examination of Maulvi Muhammad Hassan on commission in Malakand Agency. It is this order allowing fees to the counsel of the opposite‑party which has been challenged in this revision petition.

2. The learned counsel for the petitioner has contended that there is no provision of law to sustain an order like this. He has referred me to Order XXVI, rule 15, of the Civil Procedure Code, which relates to the expenses of a commission, and which reads as follows : "Before issuing any commission under this order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be; within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued." The learned counsel contends that the expenses of the commission as mentioned in this provision are restricted to the fees of the commissioner and no other expenses are permissible.

3. The words "commission" and "commissioner" are employed separately in some of the rules of Order XXVI, Civil Procedure Code, and, in my opinion, they ire not inter‑changeable. Where the Legislature uses two different words in the same context or different contexts, obviously they are intended to connote different meanings. The word "commission" is of a wider import than "commissioner", the latter meaning a person who is commis sioned by the Court to carry out some specified work, whereas the former connotes the entrustment or the authority created for the execution of that work. The expenses of the commission, there fore refer pot only to the fee of the commissioner, but to the entire expenses, including all the ancillary expenses that may be incurred in the discharge of the entrustment or in the execution of the authority for doing a particular work. For example, if the commissioner, in view of the work involved in the commission entrusted to him, needs the services of a shorthand‑writer for recording evidence which may be voluminous, or of a photographer in carrying out a local inspection, and the Court thinks that these services are necessary, the remuneration of the shorthand‑writer and that of the photographer would be expenses of the commission. Similarly, if the execution of the commission entails some technical advice the expenses of a technical advisor may be allowed by the Court, and then the expenses of the technical advisor would be expenses of the commission to be paid by the party at whose . Gul instance, or for whose benefit the commission is set up. But in party my judgment the term "expenses of the commission" cannot be extended to include the ex senses of the counsel for the opposite‑ party for any extra engagement which may be necessitated for him by the setting up of the commission at the instance of the other party. Therefore an order for payment of the fees of the opposite counsel, as ordered in this case, is not covered by the terms of rule 15 of Order XXVI of the Civil Procedure Code. But this does not conclude the matter, as the rule, in my opinion, is not exhaustive of the powers of the Court in this direction. Under rule 1 of Order XXVI, the issuing of a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under the Code from attending the Court, or who from sickness or infirmity is unable to attend it, gives a discretion to the Court to act or not to act under this rule, according at the circumstances and the justice of the case may require. Therefore an order under this rule becomes a matter of judicial discretion to be exercised with all due considerations that determine judicial discretion, and if in the exercise of that discretion the Court is of the opinion that certain conditions should be imposed for issuing a commission for the examination of a witness at the instance of a certain party, it has full powers to do so. If, for example, the Court considers that the examination of a witness on commission at the instance of one party puts the other party to an unnecessary hardship, including the payment of an extra fee to its counsel to be present before the commissioner for the examination of a witness, it can order that the expenses of the counsel be paid by the other party for whose benefit the commission is being issued. This would involve a very careful consideration of the circumstances, in which a witness, instead of being produced in Court in the ordinary course, is kept away from the Court to be examined on commission. Such commissions should be issued on account of necessity and not as a matter of mere indulgence and not without regard for the mutual convenience of the parties it should be seen, that the issuance of the commission does not give any undue benefit or advantage to one party over the other. Courts should take care riot to make such orders heedlessly in the fashion of giving bounties to the counsel of one party at the other party's expense. The order for payment of expenses and the quantum 'of the expenses should be measured in terms of the real necessities of the situation.

4. In the present case, the witness, who was desired to be examined on commission, was the father of the defendant, closely identified with his case whom he himself described as a very important witness, and who was in fact the real tenant of the premises in suit. This amounted, more or less, to the party's own examination on commission. Further, the nature of the illness of the witness was not disclosed, nor was it supported by any extra neous evidence, apart from the b rte allegation of the defendant himself. If seems that, the issuing of the commission was not objected to by the other party, and the order of the Court that a sum of Rs.50 be paid to the counsel for the opposite‑party as his fee does not appear to be unjustified. In any case, it is not a case of an illegal or a wrongful exercise of judicial discretion to call for interference in revision. The petition is dismissed. The commissioner's fee as well as the' amount of Rs. 50 ordered to be paid to the counsel for the opposite‑party shall abide the ultimate result of the case. K.B.A. Petition dismissed.