Short Note : 1. This is defendant-tenant's revision petition against an order dated 16-9-75 passed by the Fourth Civil Judge Class II, Indore in Civil Suit No. 124/74-A whereby the order for recording the evidence of his witness Ambaram at Agra on commission has been cancelled. Held : Admittedly, this witness Ambaram was to be examined to depose in respect of the theory of the defendant pertaining to the suit accommodation being taken on rent for composite purpose of residential as well as nonresidential and, in order to prove this fact only, the said witness was considered to be a material witness by the defendant-applicant. This witness Ambaram, though examined by the commissioner suo motu in the absence of the parties, has deposed this fact and, in fact, it is the plaintiff-opponents who could have any grievance, if at all, regarding the suo motu examination of this witness by the commissioner, as they have been deprived of their right of cross-examination. But they have made no such grievance. 2. It has been held by the Supreme Court in a reported decision in Brijgopal v. Kishan Gopal ( AIR 1973 SC 1096 ) relying upon its earlier decision reported in S.S. Khanna v. F.J. Dillon ( AIR 1964 SC 497 ) that the exercise of the jurisdiction under section 115, Civil Procedure Code, by the High Court is discretionary and that Court is not bound to interfere merely because the conditions in clauses (a), (b) or (c) of that section are satisfied. 3. Thus, though the learned commissioner at Agra has committed an illegality, still, in the present case, it bas not resulted in any failure of substantial justice and has not caused any prejudice to the applicant-defendant. Ordinarily, whenever a commissioner is appointed, it is his duty that whenever he fixes any date for recording the statement of a witness, he must give prior intimation of the date so fixed to the parties concerned and to the Court which issues the commission, so that the parties and their counsel may remain present at the time of execution of the commission, if they so choose. Normally, the Court should ask the parties to file interrogatories and cross-interrogatories so that the commission may be got executed accordingly, though of course a party has a right to orally examine a witness before the commissioner. Normally, the Court should ask the parties to file interrogatories and cross-interrogatories so that the commission may be got executed accordingly, though of course a party has a right to orally examine a witness before the commissioner. The observations of the trial Court that under Order 26 rule 5, CPC it is not at all necessary for the commissioner to intimate the parties of the date fixed for execution of the commission or that their presence along with their counsel at the time of the execution of the commission is not necessary, is incorrect. The principles of natural justice demand that the parties must have such prior intimation, before the execution of the commission of the date fixed for its execution. After the intimation is sent by the commissioner, it is the choice of the parties whether to remain present before him or not. But it does not mean that the commissioner can suo motu record the statement of a witness without giving any intimation to the parties concerned of the date fixed by him for its execution though, in the present case, despite that procedure having not been followed, it has not prejudicially affected the defendant-applicant's case in any way. AIR 1993 SC 1093 relied on. Revision dismissed.