Jiwibai vs Laxmichand Abasbhai

Wanchoo, C.J.—This is a revision by Jiwibai under S. 115, Civil P.C. She was an objector under O. 21, R. 58 in the Court of the District Judge of Pali. She made an application that as she was ill, she might be examined on commission. This application was allowed and the Court ordered her to pay Rs. 20/- as commission fee and'' a further sum of Rs. 45/- as expenses of the counsel for the opposite party. The applicant objects to the latter part of the order and it is submitted on her behalf that it was not open to the Court to saddle the applicant with costs of the counsel of the opposite party under O. 26, R. 15.

We agree with the learned counsel that expenses of commission as provided in O. 26, R. 15 do not include expenses of the other party other than one applying for the commission occasioned fry issue of the commission. But that in our opinion does not dispose of the matter. The order of the Court below is not specifically under O. 26, R. 15. The circumstances of this case are that it was the objector herself who wanted her evidence to be taken on commission because she was ill.

Generally speaking, the party cannot ask the Court to issue a commission for his examination, and if a party desires that a commission should be issued for his examination, the Court has power, in our opinion, to impose terms under its inherent powers in such cases. As has been pointed in - Nripendra Bhusan Roy and Others Vs. Raja Pramatha Bhusan Deb Ray, O. 26, R. 15 only provides that the Court may, if it thinks fit order that the party requiring issue of a commission do deposit the necessary expenses. But it does not prevent the Court from making any terms that it chooses as a condition precedent to the granting of the prayer.

Where the commission has to be issued as a matter of course, as for example, when a witness resides more than 200 miles from the Court house, there is no question of allowing any sum for costs of the opposite party. But where, as in this case, the person applying for commission is not entitled as of right to get himself examined on commission, the Court has the power to impose such terms as it thinks fit as to the expenses of the opposite party also in case the commission is issued. This power, in our opinion, is inherent in the Court and is not taken away by O. 26, R. 15.

What the Court below has done is to order expenses in this case because the person applying for the issue of a commission was the objector herself and she was not entitled as of right to get her evidence taken on commission. As we have already said, a party has, generally speakings to appear in Court and if he does not want to do so, he may have to pay the expenses of the other side occasioned by his examination on commission. In this view of the matter, we are of opinion that the order of the Court below is correct and there is no reason to interfere with it in revision. The application is hereby dismissed.