Judgment :- 1. The short point for consideration in this petition is whether the lower court was right in refusing to issue a commission for the examination of 4 witnesses on behalf of the defendant in O.S. 64/57 on its file. The petitioner before me is the defendant in the said suit. The suit is for recovery of a sum of Rs. 1,64,164 - 12-0 on the strength of a hypothecation deed dated 6th May 1953. According to the allegations in the plaint, the defendant has executed the said mortgage-deed in respect of the properties belonging to her. It is also stated that the defendant has not paid even interest due under the mortgage and that the principal amount and interest remained unpaid in spite of demands. The plaint also states that in reply to the notice issued by the plaintiff, the defendant has stated that she is not liable under the mortgage-deed and that she is not legally competent to charge the property and also that it is not supported by consideration and tarwad necessity. There is also a statement in the plaint that the defendant has set Up a case that the hypothecation bond was executed by her as a result of some inducement and joint representation by the Bank in conjunction with her relations and that the articles incorporated in the bond are all false. The plaint further states that those allegations are false and that the document has been executed by the defendant voluntarily and out of her own free will. The circumstances leading to the transaction are also further stated in the plaint and finally, a decree is prayed for against the defendant and in default, for recovery of the amount by sale of the mortgaged properties. The suit itself was filed on 9-7-1954. 2. The defendant filed a written statement in February 1955 disputing her liability under the said mortgage. The relevant allegations in the written statement are that though she has put her signature to the suit document, she has been induced to do so as further alleged in her written statement. It is alleged that E. C. Govindan Asan & Sons, a firm, was doing extensive, business in cashew and was having dealings with the plaintiff-Bank. The relevant allegations in the written statement are that though she has put her signature to the suit document, she has been induced to do so as further alleged in her written statement. It is alleged that E. C. Govindan Asan & Sons, a firm, was doing extensive, business in cashew and was having dealings with the plaintiff-Bank. To serve their own purpose, the defendant's father-in law, her husband, and her husband's brother and the plaintiff-Bank are stated to have represented to her that the amount was necessary for the purpose of the firm and that the same would be realised from the assets of the firm and that the hypothecation bond was intended only as a matter of form to be kept by the Bank and that it was not intended to import any liability as regards the defendant or the property. It is further alleged that it was the Bank that took the initiative in getting up the suit document and that the purpose of the loan, as stated in the suit document, is also false. The defendant never approached the Bank for any loan for the construction or completion of the building in the suit property. The defendant did not have the benefit of a single pie out of this transaction and the plaintiff has to realise its amounts, if any, only from the assets of the firm of E. C. Govindan Asan & Sons and not from the suit properties. 3. It is further alleged in the written statement that the document is unsupported by consideration and necessity so far as her sub-tarwad is concerned and that she has no power in law to create the suit mortgage. It is further alleged that the various recitals in the document are all incorrect to the knowledge of the Bank and put in to serve its own purpose as a make-believe. According to the defendant, the real position has been mentioned by her also in the reply to the suit notice sent to the plaintiff. In the end she has prayed for dismissal of the suit with her costs. 4. The plaintiff-Bank filed a replication denying the material allegations in the written-statement. It is stated therein that the document was executed by the defendant out of her own free will and consent and she received the cheque and cashed the same by endorsing the same to her husband. 4. The plaintiff-Bank filed a replication denying the material allegations in the written-statement. It is stated therein that the document was executed by the defendant out of her own free will and consent and she received the cheque and cashed the same by endorsing the same to her husband. At the time of the suit document, the building standing on the suit property was under construction and the defendant was feeling short of funds. She was introduced by her husband to the plaintiff-Bank and the plaintiff advanced the amount on being satisfied about the suit mortgage security and the necessity for the loan. The Bank's taking any further interests in the matter or initiative, as alleged in the written statement, was denied by the plaintiff-Bank. The allegations of the defendant about the representations stated to have been made by the plaintiff to the defendant that the amount will be recovered only from E. C. Govindan Asan & Sons and not from the suit properties, was also denied. The property was stated as not belonging to the sub¬tarwad of the defendant and that it is her own property. The Bank advanced the amount on the strength of her own assurances that the property belongs to her. The purpose of the loan, it is stated in the replication, is to enable the defendant to put a good substantial building on the property so that the suit property may get an enhanced value. The replication finally wound up by saying that the defendant has been set up to put forth these false pleas by her husband, G. Bhanu. 5. I have set out the pleadings in extenso only to show the case of the plaintiff and how it is sought to be met by the defendant. 6. I do not propose to go into the merits of the contentions of the parties, as they are all matters to be gone into in the trial by the lower court. The material issues are issues 1 to 4. Issue 1 related to the question as to whether the defendant has received the consideration under the suit mortgage-bond. 6. I do not propose to go into the merits of the contentions of the parties, as they are all matters to be gone into in the trial by the lower court. The material issues are issues 1 to 4. Issue 1 related to the question as to whether the defendant has received the consideration under the suit mortgage-bond. Issue 2 related to the question as to whether the said hypothecation-bond was executed by the defendant under the representation to her by the plaintiff-Bank that it was not intended to import any liability as against the defendant or the suit properties and that it was a mere matter of form and as to whether such a plea was tenable. Issue 3 relates to the question as to whether the plaint-schedule properties are the properties of the sub-tarwad of the defendant and if so, whether she is legally competent to charge the same and also as to whether the defendant is estopped from raising the plea. Issue 4 related to the question as to whether the suit hypothecation-bond is supported by consideration and necessity binding on the sub¬tarwad of the defendant. Issue 5 related to the relief, if any, to be granted to the plaintiff, and Issue 6 related to the question relating to costs. It will be seen from the Issues that the parties are in dispute as to the passing of consideration, representations stated to have been made by the plaintiff-Bank regarding the non-liability of the defendant and the liability of the suit properties to meet the claim of the plaintiff-Bank. 7. On 22-11-1955 the defendant filed a schedule of witnesses in which 14 witnesses had been mentioned. Along with that she also filed on the same day an application C. M. P. 7294/55 for the issue of a commission to the City Civil Court, Madras and to the Small Causes Court at Calcutta. She prayed for examination on commission through the City Civil Court, Madras of witnesses Nos. 9,11 and 13 and through the Small Causes Court, Calcutta, witness No. 14 in the schedule of witnesses. She prayed for examination on commission through the City Civil Court, Madras of witnesses Nos. 9,11 and 13 and through the Small Causes Court, Calcutta, witness No. 14 in the schedule of witnesses. Whether any objection was raised by the plaintiff to this application on that day is not known; but certainly no written objections were filed by the plaintiff, because it is on record that the plaintiffs filed their written objections only on 25-9-1956 with an application to excuse the delay in filing their objections. But whatever it is, curiously, the learned judge instead of disposing of this application on its merits either on that day or within a reasonable time thereafter put this application in cold storage till 18th November 1957, that is, for nearly 2 years. Not only that; he passed an order on the defendant's application on 22-11-1955 itself that the question of issuing a warrant of commission to other courts for examining witnesses will be considered after the defendant and other local witnesses are examined. It is not possible to conceive under what provisions of law the learned judge adopted this rather unusual procedure. He should have dealt with that application on its merits and if a commission had been issued as early as 1955 that evidence would have been now available for the court before the regular trial of the case is commenced 8. As stated earlier, the defendant had asked for the examination of witnesses Nos. 9,11,13 and 14 in the list filed on 22-11-1955 on commission. The defendant had stated in her affidavit in support of the application C.M.P. 7294/55 that in the nature of the contentions raised by her it is necessary to examine the witnesses included in the witness schedule. In Para.4 it is stated that witness No. 13 was employed in the plaintiff-Bank at the time the alleged transaction is stated to have been entered and that witnesses 13 & 14 are aware of the agreement set up by the defendant in her written statement and therefore, their examination is highly necessary to prove her contentions. It is further stated that witness No.13 is no longer in the service of the plaintiff-Bank and that he is a permanent resident of Madras. Witness No. 14 is stated to be the General Manager of the Plaintiff-Bank and that he is a permanent resident in Calcutta. Witnesses Nos. It is further stated that witness No.13 is no longer in the service of the plaintiff-Bank and that he is a permanent resident of Madras. Witness No. 14 is stated to be the General Manager of the Plaintiff-Bank and that he is a permanent resident in Calcutta. Witnesses Nos. 9 and 11 are stated to be necessary for the purpose of proving the date and nature of the construction of building included in the plaint schedule and that witnesses Nos. 9 and 11 are also permanent residents of Madras; Para.9 wound up by saying that in view of the fact that witnesses Nos. 9, 11,13 and 14 are residing outside the State of Travancore-Cochin, it was necessary to examine them on commission. The petition itself contained 2 prayers:-Prayer (1) relating to witnesses Nos. 9,11 and 13 being examined on commission through the City Civil Court, Madras and prayer (2) relating to witness No. 14 being examined on commission through the Small Causes Court at Calcutta. Whatever may be the merits of the first defendant's case", it will be noted that she has given the purpose for which those witnesses are to be examined and also the fact that they are living in Calcutta and in Madras far outside the jurisdiction of the Quilon Court. 9. The plaintiffs, on 25-9-1956 filed their objections to the prayer contained in C. M. P. 7294/55 for examination on commission of witnesses Nos. 9,11,13 and 14. Irrespective of the unusual delay in filing the objections, it is worthwhile noting what exactly their objection is. It is stated therein that the suit has been filed for recovery of the amount under the hypothecation bond executed by the defendant. The defendant has admitted the execution of the bond in her written statement but has stated that the money was utilised by her husband's firm namely, E.C. Govindan Asan & Sons for their purposes. The defendant has set up a contemporaneous oral agreement against the terms of the written agreement. Such contentions have been raised by the defendant to prolong the trial of the suit and to prevent the plaintiff from getting a decree within a reasonable time. Para.2 referred to the evidence of the defendant about the persons who were present at the time of the alleged oral agreement namely, the defendant's father-in-law, her husband, her husband's brother and the then Bank Manager one Mr. Chellam. Para.2 referred to the evidence of the defendant about the persons who were present at the time of the alleged oral agreement namely, the defendant's father-in-law, her husband, her husband's brother and the then Bank Manager one Mr. Chellam. Para.3 stated that the witness list filed by the defendant contains names of persons who even on her own pleadings and depositions had nothing to do with the suit transaction. The witness Hit does not show for proving which issue, each witness was being cited. Witness No. 14 is the present General-Manager of the plaintiff-Bank and that the defendant does not say anywhere that he had anything to do personally with the plaint transaction and that it will be very difficult for the General Manager to go to each court to give evidence. It was further stated that the object of citing the General Manager was obviously to tease him and the plaintiff-Bank and to postpone the passing of a decree. It is also stated in Para.3 as follows. "This is patent from her petition filed for transfer of the case to other courts for examination of witnesses on commission". It will be seen that the defendant's application was for issuing a commission and not for transferring the case to the other courts. In Para.4 it was stated that witness No. 13 was the then manager of the Madras Branch and is no more in the Bank's service. In the pleadings or depositions of the defendant nothing has been stated about him. Witness No. 11, it is stated, was the then manager of E. C. Govindan Asan & Sons and that he had absolutely nothing to do with the plaint transaction and that he has been included only for vexing the plaintiff and for prolonging the case. It was further stated that witness No. 9 is not known to the plaintiff and the plaintiff does not know also as to what he had to do with the suit transaction. In the end the plaintiff prayed for dismissal of the application filed by the defendant for issuing a commission to examine witness Nos. 9,11,13 and 14. 11. Order XVI R.1 C.P.C. makes provision for the parties obtaining, on application to the court, summonses to persons whose attendance is required either to give evidence or to produce documents. In the end the plaintiff prayed for dismissal of the application filed by the defendant for issuing a commission to examine witness Nos. 9,11,13 and 14. 11. Order XVI R.1 C.P.C. makes provision for the parties obtaining, on application to the court, summonses to persons whose attendance is required either to give evidence or to produce documents. Under Order XVI R.19, the court cannot order a witness to attend in person who is residing more than 200 miles from the place where the court is situated. There is no dispute in this case that the witnesses for whom the issue of a commission has been prayed for, are not residing in the places mentioned in the defendant's-application. Order XXVI R.4 clause (1) provides for a court issuing, in any suit, a commission for the examination of any person beyond the local limits of its jurisdiction and it is really under this rule that the defendant's application was filed. The principles relating to the issue of a commission are now fairly well-settled. 12. In Sitamma v. Subraya, (21 M. L. J. 889) Mr. Justice Abdur Rahim and Mr. Justice Surendara Aiyar have held under the corresponding provision of the old Code that ordinarily, the parties are entitled as of right to the issue of a commission apart front the question whether they would have ultimately benefitted by it and that it would be at their own risk that the commission would be issued. In Jagannatha Sastri v. Sarathambal Ammal (I.L.R. 46 Mad. 574) Mr. Justice Wallace had to consider the issue of a commission to a witness living beyond 200 miles from court under 0.16 R.19(b) C.P.C. In that case, the trial Court refused to issue a commission to examine a witness who was living more than 200 miles from the court house and who could not be compelled to attend by the ordinary process of law. The aggrieved party contended before the High Court that as a matter of law, the court was bound to issue a commission. The opposite party contended that it was entirely a matter for the discretion of the court. The aggrieved party contended before the High Court that as a matter of law, the court was bound to issue a commission. The opposite party contended that it was entirely a matter for the discretion of the court. After considering the relevant authorities on the point, the learned judge-held: (1) that in the case of a witness residing beyond the limit fixed under Order XVI R.19 (b) C. P. C. a commission should issue as a matter of right unless the court is satisfied that a party is guilty of delay or is merely abusing its authority to issue process and (21 that it is not for the court to decide whether the party will be benefitted thereby or not and that it is a matter entirely for the party. On this reasoning, the learned judge set aside the order of the trial court refusing to issue a commission. 13. I may also refer to a decision of Mr. Justice Subba Rao in Subbaraya Padayachi v. Kozhandaivel Udayar (A.I.R.1949 Mad. 496). There also the learned judge, after referring to the previous rulings held that in the absence of any abuse of the process of the court and delay, a party to a suit has a right to ask for the issue of a commission to examine a witness beyond the prescribed distance' To a similar effect is the decision of Harries, Chief Justice and Mr. Justice Sarkar of the Calcutta High Court in the decision reported in Aswini Kumar v. Anukul Chandra (A.I.R.1950 Cal. 326) and that of the Patna High Court in Tara Prasanna v. Jhaman Ram (A.I.R.1953 Patna 8). These decisions have also held that if the court rejects an application for the issue of a commission on improper grounds, it acts illegally in the exercise of its jurisdiction by not following the provisions of the Code and that such an order can be interfered in revision in the interests of justice, though it is an inter-locutory order and the unsuccessful party can make the rejection a ground of appeal in any appeal that he may file against the decree itself. I respectfully agree with the reasoning contained in the several decisions mentioned above on both points. 14. I respectfully agree with the reasoning contained in the several decisions mentioned above on both points. 14. In this case, on 18-11-1957, that is nearly 2 years after the application was filed and after the trial has commenced, the learned judge passed an order dismissing C. M. P. 7294/55 and refusing to issue the commission as prayed for. 15. The defendant has filed the above revision against this order of the learned Subordinate Judge dated 18th December 1957. Mr. T. S. Krishnamurthy Iyer, learned counsel for the petitioner, has very strenuously contended that the procedure adopted by the learned judge both in keeping it pending for nearly 2 years and also disposing it off in the manner that he did, are opposed to all known legal principles governing procedure in courts. In particular, the learned counsel has taken very strong objection to the learned judge considering the merits of an application filed on 22-11-1955 with the reference to what the witnesses have or have not stated during the trial of the suit. 16. On the other hand, Mr. T. N. Subramania Iyer learned counsel for the plaintiff very strongly supported the conclusion of the learned judge though not exactly on the grounds contained in the judgment. Mr T. N. Subramania Iyer very strongly contended that a party has no such absolute right in law to summon any number of witnesses or to have a commission issued as of right. He further contended that the application filed by the defendant is a vexatious one and an abuse of the process of court. According to him, witnesses Nos. 9 and 11 are under the control of the defendant and no commission need be issued. Witness No. 13 is no longer in the employ of the plaintiff. The witness No. 14 is sought to be examined only with a view to create annoyance and to tease him and the plaintiff-Bank. The application is only an attempt by the defendant to prolong the litigation and delay the passing of a decree in an otherwise simple suit on a mortgage. Mr. T. N. Subramania Iyer also contended that this court cannot interfere in revision under S.115 of the C. P. C. against an order refusing to issue a commission. He relied upon the decision of the Supreme Court reported in Keshardeo v. Radha Kishen (A.I.R 1953 S C. 23). Mr. T. N. Subramania Iyer also contended that this court cannot interfere in revision under S.115 of the C. P. C. against an order refusing to issue a commission. He relied upon the decision of the Supreme Court reported in Keshardeo v. Radha Kishen (A.I.R 1953 S C. 23). I have gone through the judgment of the Supreme Court and I do not find any such restriction of the powers of the High Court. In fact, in my opinion, the following observation of the Supreme Court is really against the contention of Mr. T. N. Subramania Iyer. Their Lordships observe at page 28 as follows: "The errors contemplated relate to material defects of procedure & not to errors of either law or facts after the formalities which the law prescribes, have been complied with". In this case, it is enough to state that the learned judge has committed an error as contemplated by their Lordships and which is amenable for correction under S.115 C. P. C. Apart from this, as stated earlier, the decisions referred to above show that the High Court has got jurisdiction to interfere with an order like this under S.115 of the C. P. C. 17. After taking into consideration the rather unusual procedure adopted by the learned judge and also the reasons given by him in his final order dated 18-11-1957, I am of the opinion that the order refusing to issue the commission cannot stand and has to be set aside. I am not able to accept the contention of the learned counsel for the plaintiff that this is a vexatious application and an abuse of the process of court. In fact, even the learned judge has not dismissed the application on the ground that it is a vexatious application or that the defendant was attempting to abuse its power of issuing process. Certainly there has been no delay whatsoever. No materials have been placed to show as to how exactly the application is a vexatious one or an abuse of the process of court. Therefore, this contention of the learned counsel for the plaintiff fails. It is unnecessary for me to consider the extreme argument of Mr, T. N. Subramonia Iyer that a party has no unlimited right to examine as many witnesses as he likes or can claim the issue of a commission as of right. 18. Therefore, this contention of the learned counsel for the plaintiff fails. It is unnecessary for me to consider the extreme argument of Mr, T. N. Subramonia Iyer that a party has no unlimited right to examine as many witnesses as he likes or can claim the issue of a commission as of right. 18. I am only concerned to find out whether the order of the learned judge in this case refusing to issue commission was justified or not. In my opinion, the defendant has given sufficient reasons in her application C. M. P. 7294/55 for examination of these 4 witnessess. The learned judge is not quite correct in his statement that the defendant has not stated as to how the evidence of the 14th witness will be relevant. The reasoning of the learned judge regarding the 14th witness is not correct as can be seen from Para.4 of the affidavit filed in support of the application. It is stated that witnesses 13 and 14 are aware of the agreement set up by the defendant in her written statement and their examination is necessary. But I am not concerned at this stage with the truth or falsity of the agreement set up by the defendant. Regarding witness No. 13, the learned judge states: "The evidence of witness No. 13, even if it turns out to be favourable, may not bind the Bank, if the payment is true". I am not able to appreciate this reasoning or the test applied by the learned judge. 19. Regarding witnesses Nos. 9 and 11, the learned judge states that local men will also easily know about the onstruction and there will be reliable records to prove the same. Even here. I do not agree with the learned Judge. According to the affidavit of the petitioner, it is seen that those witnesses are sought to be examined for proving the date and nature of the construction of the building in the plaint-schedule. 20. I am not at all satisfied that the learned judge has really applied the correct legal principles in disposing of this application. The learned judge says that there is no justification for further prolonging the trial. The defendant has done what she could namely, filing an application for issuing a commission as early as 22-11-1955 that is, within about 3 months after the framing of issues by the court. The learned judge says that there is no justification for further prolonging the trial. The defendant has done what she could namely, filing an application for issuing a commission as early as 22-11-1955 that is, within about 3 months after the framing of issues by the court. If orders were not passed immediately on her application, it is not her fault and it is one of the established legal principles that a party should not suffer for the mistake of the court. 21. In the end, I set aside the order of the learned Subordinate Judge and direct him to issue a commission for the examination of the 4 witnesses mentioned in C. M. P. 7294/55 in the manner indicated below. 22. As it is represented that the trial of the suit has commenced, a commission through the two courts at Calcutta and Madras will take a long time. To have a speedy disposal of the commission proceedings, I direct the lower court to appoint forthwith an advocate of that court as a commissioner to examine the 4 witnesses at Calcutta and Madras. The warrant must be returned within a period of six weeks from the date of appointment of the commissioner and no extension of time should be granted by the lower court except in very unavoidable circumstances. The costs of the commission will be borne in the first instance by the defendant. The defendant will also have to bear in any event, half the costs of the commission irrespective of the result of the suit. The other half of the expenses will abide the result and to be provided for in the decree. The plaintiff will pay the costs of the petitioner in this Civil Revision Petition. 23. Before leaving this case, I must express my very strong disapproval of the manner in which this application has been dealt with by the learned Sub-ordinate Judge. It is really very unfortunate that an application for commission filed as early as 22-11-1955 should be taken up and orders passed when the trial of the case has actually started 2 years later and it is hoped that no further occasions will arise similar to the one that I have before me.