JUDGMENT : Mohapatra, J. - This is a revision filed by the Defendants 1 to 4 u/s 115 of the CPC against the order passed by Sri B.N. Misra, Subordinate Judge of Cuttack on the 20th of August 1957 rejecting the application of the Defendants wherein they had prayed for two witnesses of their being examined on commission. The witnesses belong to Rajasthan. According to the case of both parties the witness s are material for the purpose of the pertinent point of controversy arising in the case. 2. Mr. Pasayat while arguing the Civil Revision had drawn my attention to the provisions of the Order 26, Rule (1)(a) of the CPC running to the effect that any Court may in any suit issue a commission for the examination of any person resident beyond the local limits of its jurisdiction. The language indicates clearly that it is within the discretion of the Court to allow or refuse the petition filed by a party to examine his witnesses On commission beyond the jurisdiction of the court according to the circumstances and reasons appearing in each particular case. Mr. Pasayat contends that the party Can claim the examination of witnesses beyond the jurisdiction of the Court on commission as of right and in that connection he had drawn my attention to the provisions of Order 16, Rule 19 CPC running as follows: Order 16, Rule 19. No one shall be ordered to attend in person to give evidence unless he resides (a) within the local limits of the Court's ordinary original jurisdiction, or (b) without such limits but at a place less than fifty or (where there is railway or steamer' communication or other established public conveyance for five-sixths of the distance between the place where the Court is situate) less than two hundred miles distance from the Court house. 3. The Rule signifies only that if the witnesses are living beyond the jurisdiction of the Court, the court cannot issue any processes for compulsory attendance of the witnesses. 3. The Rule signifies only that if the witnesses are living beyond the jurisdiction of the Court, the court cannot issue any processes for compulsory attendance of the witnesses. But that does not take away the discretionary powers given under the provisions of Order 26, Rule 4 CPC It cannot be suggested for a moment that at any stage and in all circumstances, however negligent the party may be previously, simply because he makes an application to have a witness examined on commission on the ground that he lives beyond the jurisdiction of the Court, that Court is bound to issue such a commission. In the case before me there was considerable delay on the part of the present Petitioners. Three suits are being tried together. The witnesses are material for the purpose of each of the three cases. Two of these cases are of the years 1953 and 1954. Manifestly they are sufficiently old. While accepting the position that the Court had discretion to refuse to issue a commission, on account of inordinate delay I am of the opinion that the learned Subordinate Judge exercised his jurisdiction with material irregularity in completely losing sight of one of the offers given by the Plaintiffs themselves in paragraph 9 of their counter. Paragraph 9 runs as follows: That lastly the Plaintiffs submit that in case the commission is issued then a pleader commissioner of this Court be appointed and costs of the Plaintiffs advocates be ordered to be deposited by the Defendants. The order dated the 20th of August, 1957 rejecting the petition of the Defendants is vacated. The learned Subordinate Judge is to appoint a pleader commissioner of his Court issuing a writ to examine the two witnesses at Rajasthan only on condition that the Defendants deposit the costs of the pleader commissioner and also of one lawyer of the Plaintiffs who is to go along with the commissioner to cross-examine the witnesses. The learned Subordinate Judge will also fix the time calling upon the Defendants to deposit the costs as fixed by him failing which he will reject the petition for examination of the witnesses by appointment of a Commissioner. The learned Subordinate Judge is also to consider the travelling allowances of both the Commissioner and the lawyer of the Plaintiffs in fixing the costs. The learned Subordinate Judge is also to consider the travelling allowances of both the Commissioner and the lawyer of the Plaintiffs in fixing the costs. The civil revision is accordingly disposed of and there will be no order as to costs of this revision. The case with this direction is remanded to the learned Subordinate Judge and the records of the lower Court are to be transmitted forthwith with a copy of the order passed by me today. Revision allowed. Final Result : Allowed