T. N. SINGH, J. ( 1 ) SHRI R. A. Roman, Counsel for the petitioner. Counsel is heard and the matter is being disposed of at the admission stage. This is defendants' petition and is directed against an order passed on 27-6-1987 by the trial court at Gwalior. That Court has allowed an application of the plaintiff to modify its earlier order. The plaintiff had prayed that although the Court had accepted her prayer for her evidence being taken on commission at Indore, where she resided, the commission issued could not be executed over a period of six years by the District Judge, Indore. Therefore, an Advocate practising at Gwalior be appointed Commissioner to take her evidence at Indore. The prayer was allowed on the condition that Commissioner's fee of Rs. 650/- had to be paid by the plaintiff, herein non-petitioner 1. It is against this order that the instant petition is filed. ( 2 ) ( 3 ) SHRI Roman, who appears for the defendants-petitioners, has seriously impugned the order on the ground that there was no justification in law for plaintiff to be examined on commission. Counsel has cited case-law to which I would soon advert but I would immediately say that the discretion to examine the plaintiff on commission having been exercised six years ago and against that no challenge having been made for such a long distance of time it is too late now to contest merely a modification of that order. What further needs to be stressed to buttress the conclusion is that the discretion once exercised six years ago by the trial court was re-exercised for the second time by the same Court. Under these circumstances, in this revision, this court would not, unless exceptional grounds are shown, interfere in the matter. The several provisions of law bearing on the question, to be discussed hereinafter, make it very clear that it is the trial Court which has to exercise its discretion in the matter and only when the discretion is exercised unjudicially or extra-jurisdictionally that a grievance can be made. ( 4 ) LET us look now at the law. The relevant provisions are those of O. 16, Rr. 19 and 21 and O. 26, R. 4, C. P. C. though, my attention is also drawn by Shri Roman to the provision of O. 18, R. 3-A. . ( 4 ) LET us look now at the law. The relevant provisions are those of O. 16, Rr. 19 and 21 and O. 26, R. 4, C. P. C. though, my attention is also drawn by Shri Roman to the provision of O. 18, R. 3-A. . According to Rule 21 of O. 16 CPC a "party" and a "witness" are not to be differentiated in the matter of giving evidence in any case. This position has to be emphasized with all seriousness and sincerity bearing in mind the constitutional imperative of fair trial embodied in Art. 39-A. . I say so for one singular reason that necessity to stress this constitutional imperative has come today when opportunity has come to do so as in decisions cited today at the Bar the attention of the Court was not drawn in any of the cases to this provision. R. 19 carries similarly a clear mandate of the legislature speaking the same language as of R. 21 when it says that "no one shall be ordered to attend in person to give evidence unless he resides within the total limits of the court's original jurisdiction. . . . . . . etc. " ( 5 ) IF the provisions of R. 4 of O. 26 are to be read meaningfully and harmoniously with those of O. 16, Rr. 19 and 21, I wonder how any argument can be made to submit that the jurisdiction and discretion of the Court underlying in Rr. 19 and 21 is in any way watered down by R. 4 of O. 26, Despite apparently having an overlapping of jurisdiction in some respects, primacy has to be attached not to the similarity of prayers which may be made at different stages of the progress of the suit but to the stage at which any application is made and the purpose for which it is made. For the purpose of commencement of the trial, summoning and attendance of witnesses is contemplated under O. 16, and I bear in mind the right emphasis of Shri Roman on the newly inserted R. 3-A of Order 18 in this connection. The Legislature has made its intention clear that the plaintiff has to appear as a witness first before the other witnesses appear and give evidence for him. The Legislature has made its intention clear that the plaintiff has to appear as a witness first before the other witnesses appear and give evidence for him. As such, the commencement of the trial would be stalled or staggered, if the plaintiff is not allowed to set the ball rolling by examining first himself and then his witnesses. The Court is, therefore, immediately called upon to apply its mind at that stage to the provisions of O. 16 and for that matter to those of Rr. 19 and 21 thereof. At that stage if it is required to look at any of the provisions of O. 26 when the plaintiff has made a prayer for his own examination on commission, then those must be read in the context of Rr. 19 and 21 of O. 16. ( 6 ) INDEED, if the plaintiff is not residing within the local limits of Court's jurisdiction the Court shall not have jurisdiction to summon him to give evidence even on the application of the defendant, albeit subject to the provisions of cl. (b), and the proviso to R. 19. As per R. 20, it is only when a "party" is present in court that he can be ordered by the Court to give evidence. In such a case, therefore, it would be proper exercise of discretion by the trial Court to issue a commission for examination even of the plaintiff himself for which the Court's entitlement to do so is statutorily contemplated under R. 4 of O. 26 itself. What is further to be borne in mind is the newly inserted first proviso to the said R. 4 (1), which I quote :-"provided that where, under R. 19 of O. XVI, a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interest or justice :" (Emphasis supplied) the examination of the plaintiff to give evidence in support of his case would definitely be necessary "in the interests of justice". Thus, if under O. 16 R. 19 when the plaintiff cannot be ordered to attend the Court in person being resident 500 kms. Thus, if under O. 16 R. 19 when the plaintiff cannot be ordered to attend the Court in person being resident 500 kms. away and unable to bear expenses for air-journey, the Legislature has itself placed a duty on the court to ensure that commission prayed is not refused as the mandate is inexorable -"a commission shall be issued for his examination. " The new proviso has definitely curbed Court's power of refusal contemplated under R. 4 (1), which uses the expression "may". ( 7 ) THE decisions to which Shri Roman has referred I propose to look into now and it behaves me to first look on a decision of this Court in the case of Verma D. D. v. Vidyaprakash 1963 Jab LJ (SN) 233. As I hinted at the outset in this decision the focus is merely on R. 4 of O. 26 C. P. C. and that too without the proviso aforequoted, which was inserted in 1976. As such, I am not satisfied if it is impermissible for me to take a different view following the amended statutory mandate and abiding also by the constitutional imperative of Art. 39-A to ensure a fair trial, allowing parties on both sides fair and reasonable opportunities to prove their cases. However, one thing I still say that the question of improper exercise of jurisdiction would always be justiceable. ( 8 ) THE learned single Judge of this Court deciding Verma D. D. (supra) was evidently impressed by the fact that trial Court's discretion had not been properly exercised as valid and sufficient reason was not advanced in support of the prayer for examination on commission and the prayer was arbitrarily allowed. His Lordship in fact relied on AIR 1925 Pat 125, which is also cited by Shri Roman. That is the case of Akbar Ali Khan and evidently of pre-1976 amendment, the focus in the case is mainly on R. 5 of O. 26. True, the Patna High Court has expressed the view that "an order for examination of the plaintiff on commission is a very strong order to be passed in any case", conceding still that such an order would be within the jurisdiction of the Court to pass, even when the new proviso was not there. True, the Patna High Court has expressed the view that "an order for examination of the plaintiff on commission is a very strong order to be passed in any case", conceding still that such an order would be within the jurisdiction of the Court to pass, even when the new proviso was not there. Gulab Rai AIR 1935 Pat 220 is another case cited by Shri Roman wherein the same view was expressed that plaintiff having chosen his forum his case would stand on a different footing than that of defendant's witness. His Lordship nevertheless allowed the prayer of the plaintiff, rendering him liable for the costs of commission. In all decisions in which plaintiff is put at a disadvantage vis-a-vis defendant, for choosing the forum, the Court, it must be said, overlooked the statutory compulsion underwritten in S. 16 C. P. C. There is no universal rule apparently of "plaintiffs open option and he is not to be denied the right of fair trial taking the contrary view, so as to defeat operation of Art. 39-A of the Constitution. ( 9 ) THE decision of another learned single Judge in the case of Gadamsetty Subrahmanyam AIR 1963 Andh Pra 429 is also pressed in service. However, that was not a case wherein plaintiff had made a prayer for his examination on commission but the case was of a Hand Writing Expert to be examined on commission. I would, therefore, take the view that observations therein, which do support Shri Roman's case validly, have to be read as obiter. ( 10 ) IN the instant case, Shri Roman's grievance is also that even if the plaintiff non-petitioner was allowed to give evidence on commission that order should have been made conditional on plaintiff's paying costs to defendants. That is true, Because, an order issuing commission can be made conditional and in passing such an order it would be always proper for the concerned Court to bear in mind the facts and circumstances of the case. According to O. 26, R. 4 itself any person may be examined on commission, "on interrogatories or otherwise". If defendant, in the instant case, was not granted costs then there ought to be an order for examination on interrogatories so that parties on both sides suffer no disadvantage of unequal treatment. According to O. 26, R. 4 itself any person may be examined on commission, "on interrogatories or otherwise". If defendant, in the instant case, was not granted costs then there ought to be an order for examination on interrogatories so that parties on both sides suffer no disadvantage of unequal treatment. ( 11 ) ACCORDINGLY, while upholding the order I direct that defendants shall be given an option to file cross-interrogatories within such period as may be fixed by the trial Court for that and also for filing interrogatories on behalf of the plaintiff. Because the plaintiff non-petitioner is not before me, I direct that within two weeks the defendants-petitioners shall make a prayer before the trial Court exercising his option and, in the alternative, claiming costs. The plaintiff shall be heard on the application and thereafter appropriate orders in that regard shall be passed. With the above observations and directions this application is disposed of. Order accordingly. .