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Judgment
Kumarayya, J.—This Civil Revision Petition raises the question as to whether a person, who is in the position of a defendant in the suit, can demand, as of right, examining himself as a witness on commission; and if not, whether in the circumstances of the case, it is just and proper that a commission should issue.
The petitioner-defendant is a limited company carrying on its business at Barsi in Sholapur District, the plaintiff is a registered partnership firm with its head quarters at Kakinada. The action is for damages flowing from the breach of contract and was laid in the Court of the Subordinate Judge, Kakinada. This contract is said to have been entered into at the first instance on a telephone call with the working partner, of the managing agents of the defendant''s company who seeks now to be examinee on commission, as a witness in the case. Originally the suit was posted for evidence on 14-9-1960 but the petitioner, well in advance of that date, on 31-8-1960 itself made an application accompanied by an affidavit requesting the Court that since it was not convenient for the managing agent to be present on that date in court as a witness, the trial may be adjourned to any date between 19-9-1950 and 24-9-1960 or to some other convenient date. The court readily granted the request and advanced the date to 20-9-1960. The witness does not appear to have been sincere in his request, for shortly thereafter, another application was made on 12-9-1960 and this time it was for issue of commission. In the affidavit filed, it was averred that the witness cannot afford to be away from Barsi for 5 or 6 days at a stretch without causing dislocation to the company''s work and that since he is living at a distance of more than 200 miles from Kakinada, he is entitled to be examined on commission at Barsi. This petition was filed under Order 16, Rule 19, Order 26 rule 4 and Section 151 C.P.C. The plaintiff opposed it on the grounds that the witness occupies the position of a defendant and cannot insist as of right on the issue of a commission for his own examination as a witness; that there was no compelling necessity for the issue of such commission and that the likelihood of dislocation of business is not true in that the witness himself had once offered to appear before the Court.
The learned Subordinate Judge rejected the petition on the ground that the witness who is the managing partner of the defendant company must be deemed to be the party in the suit, that he is an important witness and having regard to the facts and circumstances of the case and the nature of his evidence, the Court must have an opportunity of observing his demeanour. He refused to countenance the plea that by his absence from Barsi, the work of the defendant Company would be dislocated.
Mr. K. B. Krishnamurthy, the learned counsel for the petitioner, advanced a two-fold argument; firstly, that the witness is not in the position of a defendant and hence he has a statutory right to be examined on commission, and secondly, in any view, the commission cannot be refused merely because he occupies the position of a defendant.
It is indisputable that a civilised system of law is as much concerned with the means employed for securing justice as it is with the ends of justice itself. A litigant consequently must, as far as possible, always enjoy a right to have the witness brought before the Court for purposes of examination in accordance with the normal procedure. That indeed has a salutary effect on the proper administration of justice. But it may also be that in particular cases, a departure from this normal procedure becomes inevitable or highly expedient in the interest of justice. The Code therefore provides for cases where such departure is permissible. These provisions are exhaustive and are embodied in rules 19 and 21 of Order 116 and also rules 1, 4 and 5 of Order 26, C.P.C. The first mentioned rule applies to persons who are ordered to attend in person to give evidence. Rule 21 covers cases where the persons so required are parties to the suit itself. But certainly neither of these provisions has any application to a case where a party to the suit, on his own motion, wants to be examined on commission as a witness. In that case resort may be had only to the provisions of rule 1 or rule 4 of Order 26 C.P.C. Benefit of these provisions may be claimed if necessary circumstances mentioned therein do exist. But even there, that is not a matter of right for the party but is left to the discretion of the Court which of course has to be exercised on sound principles of justice, equity and good conscience having regard to the circumstances of the case. No doubt, some of the Madras decisions to which we presently advert were inclined to interpret the expression "may" used in these rules i.e., rules 1 and 4 of O. 26 C. P. C. as virtually ''must'', but they are cases mainly concerned with Order 16 Rule 19 C.P.C. But the present case is not of that kind and certainly the defendant seeking to examine himself cannot claim any right under the clear terms of the provision. The matter is exclusively within the province of Order 26 which leaves it to the discretion of the Court. While holding so, we find ourselves in respectful agreement with the view of the Calcutta High Court in Kumar Sarat Kumar, Ray Vs. Ram Chandra Chatterjee, which deals with the case of a defendant. The defendant in the instant case is a limited concern and the witness is the working partner of the managing agency and runs the business of this limited concern. It admits of little doubt that the witness therefore occupies the position of a defendant. He in fact entered into the agreement on telephone on behalf of the defendant. He is one of those who are interested in the company and is in actual management of the same. His position therefore virtually is of a defendant. The expression "Managing Agent" as defined in Section 2(25) of the Companies Act means:-
any individual, firm or body corporate entitled, subject to the provisions of this Act, to the management of the whole, or substantially the whole, of the affairs of a company, by virtue of an agreement with the company or by virtue of its memorandum of articles of association, and includes any Individual, firm or body corporate occupying the position of a managing agent, by whatever name called.
That makes the statutory position clear. Besides, as already noticed, the witness is not only entrusted with the management of the company but also is a party to the contract and is said to be in charge of the defence of the case. Undoubtedly, to all intents and purposes, he occupies the position of a defendant. That being the case, it follows that his examination as a witness on commission cannot be a matter of any right but wholly is left to the discretion of the Court. That is how the lower Court has viewed the matter and disallowed the application for the ends of justice.
It is well settled that when a Court of appeal or revision is invited to interfere with an order of trial Court made with jurisdiction in exercise of its discretion, it should be very unwilling to interfere unless the trial Court has gone wrong on some vital principle. We may in this connection refer to the following observations of Lord Esher, M. R. in Emanuel v. Soltykoff, (1892) 8 TLR 331 at p. 332:-
......the Court had to exercise its discretion as to granting a commission, and this Court would be very unwilling to interfere with the exercise of that discretion by the Court below. Each case must depend upon its own circumstances, and no rule as to the exercise of that discretion could be laid down. If this Court saw that the discretion had been wrongly exercised, if it saw that the case in all its bearings was not laid before the Court below, if it saw that the Court below misapprehended an important part of the case, this Court would interfere. These observations indeed lay down some of the important tests for interference with the exercise of discretion of the Court below.
It is argued now that the discretion in this case at any rate, has been wrongly exercised and that is a sufficient ground for our interference. The discretion conferred on courts of justice is certainly a discretion which has to be exercised judicially and not arbitrarily, the governing principles, being justice, equity and good conscience of the court. Each case must depend upon its circumstances and no hard and fast rules of universal application can be possibly laid down. However, there are certain broad principles which must necessarily be kept in mind when exercising discretion. We are in this connection referred to certain cases wherein it was laid down that the person invoking exercise of discretion must be bona fide in making the application, that the application of the defendant should not be subject to the same amount of scrutiny as that of the plaintiff, that the reasons why the witness cannot be examined in Court must be carefully considered, that regard must be had to the conduct of the party and that further, it must be considered whether the examination on commission would result in manifest injustice to any party or is not calculated to permit of the evidence being tested fairly or is likely to prove an abuse of process of Court. Justice above all is of paramount consideration and the discretion should be exercised for furtherance of the same in the particular circumstances of the case. In Re Boyse, Crofton v. Crofton, (1882) 20 Ch. D 760 at p. 770 Fry, J. had to consider the advisability of issuing a commission in the interest of justice to the French Court to examine Gautier. The witness Mr. Gautier, it may be noted, was a person largely interested in the success of the case and therefore the learned Judge was of the opinion that he must be examined in Court since he was a person not expected to be anxious to disclose the truth. It is apt to extract the following observations of the learned Judge:
Mr. Gautier appears to me to be so mixed up with the whole transaction, that he is a person whose evidence it is very important for the Court to have. If I were now trying the claim I should certainly desire to see M. Gautier in the box, in order that I might hear what he might have to say on all the matters (and they are numerous) which are in controversy between the parties. The learned Judge in the particular circumstances of the case and the nature of the Tribunal to which commission may have to be issued in case the request is granted, bought it inexpedient to issue commission. It is obvious therefore that if a person vitally interested in the case is to be examined as a witness, justice and fair play would ordinarily require that he should be examined in Court and not on commission. So that the Judge may have an advantage of observing his demeanour which, in the circumstances of the case, may be very material. Of the rulings cited by the petitioner Kumar Sarat Kumar, Ray Vs. Ram Chandra Chatterjee, is the eldest. There the question related to examination of a defendant who lived beyond the local jurisdiction of the Court at a long distance. It was observed therein that the issue of a commission was purely a matter of discretion with the Court. No doubt, the distinction between the case of a plaintiff and that of a defendant as a witness as drawn and emphasised in the rules of the Supreme Court of England as is clear from the decisions in Ross v. Woodford, (1894) 1 Ch 38 and New v. Burns, (1894) 64 Li QB 104 and other cases and most particularly from the judgment of Chitty, J. in (1894) 1 Ch 38 and of Lindley, LJ in (1894) 64 LJQB 104 was noticed and which was to the effect that if an application is made by a defendant and specially by a defendant who lawfully resides out of the jurisdiction of the Court according to the ordinary course of his life and business the Court would not regard the case with the same strictness as the case of the plaintiff who has instituted his suit in a forum of his choice, though he may be residing beyond the jurisdiction of such Court. But all that was said about it was that this rule should be borne in mind as a rule of good sense while considering the application of a defendant who resides at a very long distance lest it might be oppressive and unfair to him. It does not however follow that defendant is, as of right, entitled to be examined on commission. Being a matter of discretion, much must depend upon the particular circumstances of each case. As a matter of fact, in the case cited, having regard to the Balance of convenience, commission, though granted, was not directed to issue to the place where the defendant resided but to some other place and the entire burden of the costs of commission was laid on the party applying.
Of the Madras Cases Jagannatha Sastry Vs. Sarathambal Ammal and Others, ) is the earliest. This was the case of a witness and not of defendant and is distinguishable on that account for in case of witnesses such statutory privileges ensure for their benefit under Order 16 Rule 19. But even there, the learned Judge, after a consideration of various decisions placed before him, stated the law thus:-
The balance of authority is in favour of the view that, (1) ordinarily, in case of a witness not under the control of the party asking for the commission, who resides beyond the limit fixed under Order 16, R. 19(b) C.P.C. a commission should issue as a matter of right unless the Court is satisfied that a party is merely abusing its authority to issue process.........
That shows that even in cases where there is a statutory right it is open to the Court to refuse the same if the witness is under the control of the party and the application is not bona fide. The next case cited is Rajagopalu Pillai Vs. Kasiviswanathan Chettiar, It was held therein that observing the defendant''s demeanour in the box is not by itself a sufficient ground for refusing a commission and that distinction should always be made between an application of the plaintiff and of the defendant. This was no doubt a case of a defendant but his conduct in making an application for commission was bona fide and beyond any reproach. A.P.S. Muhammad Ibrahim Vs. Allapichai Rowther, is again a case where the defendant sought to examine himself on commission. The defendant was a resident of Penang. He came to India to celebrate his daughter''s marriage and came to know of an ex parte decree passed against him. He applied to the Court to set it aside and this the Court did. Afterwards the defendant left the jurisdiction of the Court almost immediately for Penang. A written statement was filed by his power-of-attorney agent. An application for examination of the defendant and two witnesses on commission thereafter was made. The trial Court allowed only the witnesses to be examined on commission but not the defendant. The High Court interfered with the order observing that it was not possible for the defendant to feel while he was within the jurisdiction of the Court that he could have been examined immediately and it is too much to expect that he should continue to remain within the local limits of the Court for two or three months for giving evidence in the interlocutory proceedings that being a long time enough for a business man to remain away from his home. Subbaraya Padayachi v. Kozhandaivel Udayar, AIR 1949 Mad 496 is of course a case where the witness sought to be examined was other than the party and the view taken in Jagannatha Sastry Vs. Sarathambal Ammal and Others, was followed therein. In In Re: U.R.M.M.S.S. Subramanian Chettiar and Others, ) however the person to be examined was a defendant in the suit but was living at a long distance. The issue of commission was opposed on the ground that the Court must observe the demeanour of the party in the box. But this argument was repelled obviously because, in the circumstances of the case, that alone could not outweigh the consideration of distance and great inconvenience. In Muhammad Zackria v. Abdul Karim, (1956) 2 Mad LJ 371 the same learned Judge refused issue of commission on the ground that, on the facts of the case, it was essential to examine the defendant in court itself and therefore it was inexpedient to issue commission. Justice of the case there required that the judge should note the demeanour personally.
Thus, on the authorities cited above, the plea that observing the demeanour of a witness by the Judge is not a strong or sufficient ground for refusing issue of commission for examination of a defendant residing beyond the local limits of the jurisdiction of the Court cannot be accepted. Issue of commission being a matter of discretion, each case has to be judged on its particular facts and ends of justice must undoubtedly be a paramount consideration. Inconvenience of a party cannot be a significant factor when the interests of justice warrant that he should come before the Court. As already observed, it is always the right of a litigant to have the witness brought before the Court and examine him so that justice may be rightly done on the true appreciation of the worth and value of the evidence given by the witness.
It would further appear from the above authorities that if the application is not bona fide or is likely to result in an abuse of process of the Court, such an application shall not be granted. That the case of a defendant should not be viewed as strictly as a plaintiff is no doubt an equitable consideration flowing necessarily from the fact that since the plaintiff has exercised the choice of forum he should not be permitted to keep away from the Court premises when the question of his own examination as a witness comes. On that basis, the defendant indeed occupies comparatively a better position. But that does not mean that the defendant can claim immunity from personal attendance as a witness or that to is blessed under the statute with all the privileges under Order 16 rule 19 which are only intended for persons who are required to give evidence. Certainly his case will raise only a question of discretion of the Court rather than a question of his right. It is of course a discretion which has to be exercised only judicially having regard to all the circumstances of the case. In the present case, it is evident that the defendant himself did not, in the beginning, wish to have the witness in question examined on commission. The witness had offered to give his evidence in Court. It is on this representation that he got an adjournment. But after the request is thus granted on the faith of his representation, the witness, without any show of supervening circumstances, has now claimed exemption from attendance in Court. As already observed, he has no such right in that he occupies the position of the defendant. He was fully conscious of the same when he offered to enter appearance on any convenient date shown by him. He may as well be deemed to have waived his right even if any, by his conduct. At any rate, when the matter, obviously enough, is discretionary with the Court, his conduct must disentitle him to the exercise of discretion in his favour. It is clear that the plea of dislocation of work which he advanced is a hollow unreality. Besides, there are other grounds on which the petition has been rightly disallowed. The witness had contacted the plaintiff on telephone and made the contract. His evidence is indeed of vital importance. His oral testimony therefore, in the interests of justice, must undoubtedly be tested fairly and fully. When such is the demand of justice, it is impossible to hold that the observance of demeanour of the witness cannot be a strong ground in the circumstances of this case to warrant rejection of the application for issue of commission. The lower Court was therefore right in disallowing the petition for the issue of a commission. The Revision Petition therefore fails. We therefore dismiss the same with costs.