J. M. SHETH, J. ( 1 ) THIS is a revision petition filed by original defendant No. 2 under sec. 115 of the Civil Procedure Code (which will be herein after referred to as the Code) against the order passed by the learned Civil Judge Senior Division Kutch at Bhuj in Special Civil Suit No. 17 of 1966 below Ex. 161 dismissing the application filed by the petitioner to examine one Girdharilal Bhaiya residing at Akola (Vidharbha) on commission. ( 2 ) PETITIONER is the father of present opponent No. 1. Opponents Nos. 2 and 3 are the legal representatives of one Talakshi who was original defendant No. 1 and had died. Opponent No. 4 is the original defendant No. 3. ( 3 ) ACCORDING to the petitioner one Umarbai gifted the suit properties to present opponent No. 1 (plaintiff) by a deed dated 14-4-1927 at Akola. It is alleged that deceased Talakshi passed a deed of Kararnama on 18 in favour of the present petitioner (defendant No. 2) and in that deed there is a mention that the suit property was gifted to opponent No. 1 (plaintiff) on 14-4-1927. Girdharilal witness to be examined on commission is alleged to have attested that deed dated 18-12-1929 and he is conversant with the matter. He is residing at Akola which is at a distance of more than 300 miles from Bhuj the place where the suit is filed. Further he is suffering from Anemia enlarged prostate and urinal infaction. Medical certificate in that behalf is also produced alongwith the application. It is on these grounds that the aforesaid request to examine that witness on commission was made. That application was opposed by opponents Nos. 2 and 3 legal representatives of Talakshi. ( 4 ) THE learned trial Judge rejected the aforesaid application on several grounds. One of the grounds was that plaintiff opponent No. 1 had given an application Ex. 107 on 9-2-1968 requesting that this witness and two others be examined on commission. It was rejected on 5-7-1968. Revision application against it was also dismissed by the High Court. No new grounds are made out. According to the learned trial Judge there is nothing in the medical certificate to show that Girdharilal Bhaiya is unable to travel to Bhuj. It is stated therein that he should take rest and treatment for four months. It was rejected on 5-7-1968. Revision application against it was also dismissed by the High Court. No new grounds are made out. According to the learned trial Judge there is nothing in the medical certificate to show that Girdharilal Bhaiya is unable to travel to Bhuj. It is stated therein that he should take rest and treatment for four months. It is nowhere stated that he is unable to travel because of his illness. There is also no affidavit of Girdharilal Bhaiya or the Doctor to show that Girdharilal Bhaiya is not in a position to travel from Akola to Bhuj. According to the learned trial Judge Girdharilal Bhaiya is not an attesting witness to that giftdeed on the basis of which the suit is filed. The only allegation is that deceased Talakshi had admitted in the writing dated 18-12-1929 regarding that gift. For the proof of the giftdeed it is not necessary to examine Girdharilal Bhaiya. According to the learned trial Judge donor Umarbai herself who was examined has not supported the plaintiffs story regarding this gift made by her. In these circumstances according to the learned trial Judge it is necessary that an important witness should be examined in the Court so that his demeanour may be noted. According to the learned trial Judge the petitioner has been able to bring another witness from Akola for examination at Bhuj. He could as well keep Girdharilal Bhaiya also present. It is on these grounds that the learned trial Judge has stated that he does not think it proper to use his discretion in favour of the petitioner and issue commission as prayed for. ( 5 ) MR. A. K. Mankad appearing for the petitioner has urged that in Order 26 Rule 4 of the Code no doubt the words used are Any Court may in any suit issue a commission for examination of any person resident beyond the local limits of its jurisdiction. But in Order 16 rule 19 of the Code the word used is shall. A. K. Mankad appearing for the petitioner has urged that in Order 26 Rule 4 of the Code no doubt the words used are Any Court may in any suit issue a commission for examination of any person resident beyond the local limits of its jurisdiction. But in Order 16 rule 19 of the Code the word used is shall. That rule reads:no one shall be ordered to attend in person to give evidence unless he resides (A) within the local limits of the Courts 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 fivesixths of the distance between the place where he resides and the place where the Court is situate) less then three hundred miles distance from the Court house. IT is therefore urged that admittedly witness to be examined on commission is residing at a distance of more than 300 miles from the place where the Court is situate. In view of this provision of Order 16 rule 19 (b) of the Code the Court is bound to issue commission. It is the statutory right of the party to examine such witness on commission. The Court has no jurisdiction to refuse such request. That being so Mr. Mankad has submitted that this Court could interfere with such an order as the error committed by the trial Court is jurisdictional error. Mr. Mankad has submitted that the word may referred to in Order 26 Rule 4 of the Code should be construed to mean has given authority to. In support of his arguments he has invited my attention to the decision of Subba Rao J. (as he then was) in Subbaraya Padayachi v. Kozhandaivel Udayar A. I. R. 1949 Madras 496. This decision no doubt lends support to his argument. It is observed therein:a party to a suit has a right to ask for the issue of a commission to examine a witness who resides beyond the limits fixed under Order 16 Rule 19 (b) unless the Court is satisfied that a party is merely abusing its authority to issue process. It is not for the Court to decide whether the party will be benefited thereby or not; that is a matter entirely for the party. IN the instant case Mr. It is not for the Court to decide whether the party will be benefited thereby or not; that is a matter entirely for the party. IN the instant case Mr. Mankad has submitted that the trial Court has not recorded a finding that the petitioner is merely abusing its authority to issue process. Subba Rao J. has in the course of his judgment quoted the observations made by Wallace J. in Jagannatha Sastri v. Sarathambal Ammal 49 Madras 574 (AIR 1923 Madras 321 ). It is observed:wallace J. after considering the various decisions cited before him expressed his conclusion as follows:the balance of authority is in favour of the view that (1) ordinarily in the case of a witness not under the control of the party asking for the commission who resides beyond the limit fixed under Order 16 Rule 19 (b ). Civil 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 and (2) that it is not for the Court to decide whether the party will be benefited thereby or not that is a matter entirely for the party. With great respect I agree with this observation. SUBBA Rao J. referred to another decision in Palaniappa Chettiar v. Narayanan Chettiar 1946 Madras Law Journal 179 (AIR 1946 Madras 331 wherein Bell J has observed:in my opinion it is a matter of discretion for the Court in the circumstances of each particular case. SUBBA Rao J. explained that decision by observing: that observation in that case is a mere obiter as the finding in that case was that the particular application was an abuse of the process of Court. ( 6 ) IN A. V. Nataraja Konar v. Poovalingam Pillai 1967 Madras Law Journal Reports 369 a single Judge of the Madras High Court has observed:issue of commission in respect of cases falling under Order 26 rules 4 and 5 is not one of discretion. but it is in the nature of a statutory right of the litigant provided he is not guilty of laches and the party to a suit has a right to ask for the issue of commission to examine witnesses beyond the prescribed distance. but it is in the nature of a statutory right of the litigant provided he is not guilty of laches and the party to a suit has a right to ask for the issue of commission to examine witnesses beyond the prescribed distance. IN S. K. Subramaniam v. N. S. Krishnamachari 1971 Madras Law Journal Reports 211 it is observed:in the case of parties the Court has a discretion in issuing a commission and the discretion will be very strictly exercised in the case of the plaintiff while in the case of the defendant it would be more liberally exercised. In either case it is clearly within the discretion of the Court to consider whether the party should be examined in the presence of the Court or on commission. The fact that the party is residing beyond 200 miles from the Court house does not confer any right to be examined on commission. The position with regard to witnesses is different A witness residing at a distance of more than 200 miles has a right to be examined on commission provided that he is not within the control of the party making the application and that the application is not an abuse of the process of Court or actuated by mala fides or fraud. Considerations like the conduct of the persons making the application for commission the delay or laches as well as negligence on his part in making such an application can be taken into account and it cannot be suggested that at any stage and in all circumstances however negligent the party may be the Court is bound to issue a commission when sought for by a party. From the mere relationship or friendship it cannot be assumed that they are under the control of the petitioner. So long as it is not established that the witnesses are under the control of the petitioner the petitioner has got a legal right to have a commission issued unless the Court is satisfied that the party is merely abusing its authority. IF the ratio of these decisions is accepted it is no doubt true that so far as the witness to be examined on commission is concerned it will be the statutory right and it will not be merely within the discretion of the Court to examine the witness on commission or not. ( 7 ) MR. IF the ratio of these decisions is accepted it is no doubt true that so far as the witness to be examined on commission is concerned it will be the statutory right and it will not be merely within the discretion of the Court to examine the witness on commission or not. ( 7 ) MR. Vaidya appearing for opponent No. 2 has urged that sec. 75 of the Code which is a substantive section dealing with Power of Court to issue commissions reads:subject to such conditions and limitations as may be prescribed the Court may issue a commission (a) to examine any personthe word used is may and not shall. In clause (a) the words used are to examine any person. The words any person are comprehensive enough to include a person other than a party meaning thereby that any person will also include a witness. In the substantive section which deals with Power of Court to issue commissions no difference is made between a witness and a party. The Court has been given a discretion. Similar is the position regarding the language adopted by the legislature in Order 26 rule 4 of the Code. Mr. Vaidya has submitted that in Order 16 rule 19 of the Code the word shall has been purposely used. It only means that the Court cannot compel a witness who is residing out side the local limits of the Courts ordinary original jurisdiction and who is residing at a distance of more than three hundred miles (so far as the Gujarat State is concerned) from the place where the Court is situate to attend the Court. It would therefore mean that even if a summons is summoned on such a witness to attend the Court to give evidence and he does not attend no penal consequence for non-appearance and for disobedience to the order of the Court will ensue. It does not mean that in each and every case when a party wants to examine a witness on commission it is the statutory right of such a party to examine such a witness and if the Court refuses to examine such a witness on commission the Court commits a jurisdictional error. In support of his arguments he has invited my attention to several decisions. In support of his arguments he has invited my attention to several decisions. ( 8 ) IN Shantibai v. Motiram Sitaram AIR 1946 Sind 30 a Division Bench of Judicial Commissioners has observed:in principle there is no difference in the application of sec. 115 to an order made under Order 26 Rule 1 under which commission is granted on the ground of sickness or infirmity or under Order 26 Rule 4 where a commission is granted on the ground that a witness is resident beyond the local limits of the Courts jurisdiction. An order that the Commission shall or shall not issue is not a case decided within the meaning of sec. 115. A proper discretion is to be exercised under Order 26 Rule 4 as a proper discretion is to be exercised under Order 26 Rule 1 but an improper exercise of that discretion does not attract the application of sec. 115. An aggrieved party however is not entirely without remedy in such a case for in case of need it is possible to invoke the assistance of see. 151. MR. Vaidya also invited my attention to the decision of a Division Bench of the Bombay High Court in Dhanbai Burjorji Cooper v. Bablibai Shapurji Sorabji 36 Bombay Law Reporter 272. At page 275 the relevant observations made are:here Mr. Daphtary for the appellant contends that he is entitled as a matter of right to an order for the taking of this evidence on commission. The order is asked for under Order XXVI rule 4 which provides 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 appears to confer a discretion upon the Court and not to give a statutory right to a party. Mr. Daphtary referred to us the decision in Jagannatha Sastri v. Sarathambal Ammal ( (1922) I. L. R. 46 Madras 574) in which Mr. Justice Wallace did express the view that a party had a statutory right to take on commission the evidence of a witness who was resident more than two hundred miles from the Court though in that case it was not necessary for him to go as far as that because he held further that if there was a judicial discretion the discretion of the lower Court had been wrongly exercised. I am however clearly of opinion that the view indicated in that case that a party has a statutory right to an order for taking evidence on commission is not well-founded. On such application the Court has to consider not only the claim of the party who desires to take evidence on commission but the rights of the opposite party. If evidence is taken on commission the opposite party is deprived of the right of cross examining the witness before the judge who has to determine the suit and that in the case of an unreliable witness is a very valuable privilege. Moreover in some countries no cross examination at all is allowed in the case of evidence taken on commission. The Court therefore has to consider what is the right thing to do on the particular facts of each case and in my view it is impossible to say that a party asking for a commission is entitled as of right to an order. If that is so it is difficult to see how an order refusing a commission can be an order affecting the merits of the question between the parties by determining some right. No doubt the appellant is deprived by the order of the right to give this evidence in the particular way in which she desires to give it and it may be that it will be impossible for her to get the evidence in any other way but the order is purely an interlocutory order relating to procedure. If the suit is heard and determined against the present appellant she will have a right to appeal and she may no doubt then contend that the order refusing a commission was wrong. Her rights are not finally determined by the present order. IT is thus evident that a Division Bench of the Bombay High Court in the aforesaid decision which was given prior to the bifurcation of the Bombay State has taken a view which runs counter to the view taken by the Madras High Court in several decisions referred to by me earlier. This decision of the Bombay High Court is binding on me. ( 9 ) IN M/s. Filmistan Private Ltd. Bombay v. M/s Bhagwandas Santprakash 1970 Supreme Court Cases 258 the Supreme Court had to deal with the substantive provisions of sec. 75 of the Code referred to by me above. This decision of the Bombay High Court is binding on me. ( 9 ) IN M/s. Filmistan Private Ltd. Bombay v. M/s Bhagwandas Santprakash 1970 Supreme Court Cases 258 the Supreme Court had to deal with the substantive provisions of sec. 75 of the Code referred to by me above. It is observed by the Supreme Court:the Witnesses are relevant. The order to examine them is discretionary and as such cannot be interfered with by this Court. IT thus appears that the Supreme Court has also observed that it is in the discretion of the Court to examine the witnesses on commission or not. It is true that the Supreme Court as well as the Bombay High Court had not considered the provisions of Order 16 Rule 19 (b) of the Code. In my opinion the provisions of Order 16 rules 19 (b) of the Code only indicate that a witness who is residing at a distance of more than three hundred miles (in Gujarat) from the place where the Court is housed cannot be compelled to attend the Court as a witness but it only means that if such a witness is served with a summons to appear in the Court to give evidence and does not appear in obedience to it he cannot be visited with the penal consequence for such disobedience. It does not mean that the party has got a statutory right to examine such a witness on commission as has been canvassed by Mr. Mankad before me. It is no doubt true that the discretion has to be exercised judicially. In the instant case the learned trial Judge has given reasons why he was not inclined to use his discretion in favour of the petitioner. It is true that some of the reasons given by him may not appeal to this Court. But one important ground given by him is that in the instant case the suit claim is based on the gift-deed dated 14-4-1927. Girdharilal Bhaiya witness to be examined on commission is not the attesting witness to it. Umarbai who is alleged to have made the gift in favour of opponent No. 1 (plaintiff) has been examined in the suit and she has not supported that story of the gift. Girdharilal Bhaiya witness to be examined on commission is not the attesting witness to it. Umarbai who is alleged to have made the gift in favour of opponent No. 1 (plaintiff) has been examined in the suit and she has not supported that story of the gift. The learned trial Judge therefore feels in the circum stances of the case that it is desirable that Girdharilal Bhaiya who is alleged to be an attesting witness only to a Kararnama wherein it is alleged that deceased Talakshi had admitted that writing should be examined in the Court so that his demeanour be noted. It cannot be said on taking into consideration the aforesaid ground that the trial Court has not used its discretion judicially. It cannot be said that it has been used arbitrarily. I therefore hold that no case is made out to interfere with such discretionary order in the exercise of the revisional jurisdiction of this Court under sec. 115 of the Code. The revision petition therefore fails. ( 10 ) REVISION petition is dismissed. Taking into consideration the circumstances of the case each party is ordered to bear its own costs in this revision petition. Rule is discharged. .