JUDGMENT - R.A. JAHAGIRDAR, J.:---This petition challenges the propriety and legality of the order passed by a Judge of the Court of Small Causes, Bombay, on 19th April, 1983 on an application made by the petitioner for issuing a commission for examination of four witnesses who are in Delhi under Order XXVI, Rule 4 of the Code of Civil Procedure. The petitioner has filed a suit against the respondent for possession of a flat Bearing No. 45-A in Anita Building situate at Mount Pleasant Road, Bombay, which is in the possession of the respondent as a tenant. The said suit had been filed on a ground which is available to a landlord under section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as “the Bombay Rent Act “. 2. The petitioner says that he required the said flat, hereinafter referred to as “the suit premises”, reasonably and bona fide for his own use and occupation because, among other things, his mother, who is an old lady of 75 years and who has several ailments, requires to stay in Bombay and away from Delhi where she is at present staying. The ground therefore, is that the mother of the petitioner has been advised by doctors in Delhi that the Delhi climate is not conducive to her health and that she should shift to Bombay. In order to prove this fact the petitioner wants to examine some doctors in Delhi who can depose to the fact about the health of the petitioner's mother and of her need to go to Bombay. 3. This application was resisted by the respondent on the ground that the witnesses who are to be examined also have got to be cross-examined by the respondent. If commission is issued, cross-examination of the witnesses would be impossible because the respondent cannot be compelled to go to Delhi for the said purpose. Mr. Mehta, the learned Advocate appearing for the petitioner, has stated these facts and has contended that the learned trial Judge who rejected this application by her order dated 19th of April, 1985 has not exercised jurisdiction vested in her by law. In any case, if discretion has been exercised, that discretion ought to have been exercised in favour of the petitioner because, according to him, interests of justice so demand. I have with the assistance of Mr. In any case, if discretion has been exercised, that discretion ought to have been exercised in favour of the petitioner because, according to him, interests of justice so demand. I have with the assistance of Mr. Mehta gone through all the material and through the judgement of the learned trial Judge. The learned trial Judge, in the first place, held that the witnesses whom the petitioner wants to examine are amenable to an order made by the Small Causes Court at Bombay under Order XVI, Rule 19 of the Code because, according to the learned trial Judge, those witnesses reside within the place covered by the said rule. In such a case it would be inadvisable to exercise the powers conferred upon a Court under Order XXVI, Rule 4 of the Code. The learned trial Judge proceeded on the assumption that the petitioner is sufficiently affluent to bear the expenses of the witnesses from Delhi that they would be willing to give evidence in Delhi if they are to be paid air fare as contemplated by the proviso to Order XVI, Rule 19 of the Code. The learned trial Judge was also not impressed by the affidavits filed on behalf of the doctors in Delhi that they would be willing to give evidence in Delhi if examined on commission and it would be difficult for them to come to Bombay. The learned trial Judge has thus used her discretion which, I shall point out shortly, vests in her by Order XXVI, Rule 4 of the Code. 4. The learned trial Judge has thus used her discretion which, I shall point out shortly, vests in her by Order XXVI, Rule 4 of the Code. 4. Rule 4(1) of Order XXVI of the Code of Civil Procedure is as follows :- “Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of --- (a) any person resident beyond the local limit of its jurisdiction ; (b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and (c) any person in the service of the Government who cannot, in the opinion of the Court, attend without detriment to the public service : Provided that where, under Rule 19 of Order 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 interests of justice : Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.” The provisos to this sub-rule has been inserted by Act 104 of 1976. Before these provisos had been inserted, the question as to whether the word “may” occurring in the sub-rule means “shall “ had arisen before several courts. Mr. Metha invited my attention to those various judgements and at one time thought the word “may” means “shall”. However, he was fair enough to point out that this Court has held otherwise as early as in (Dhanbai Burjorji Cooper v. Bablibai Shapurji Sorabji others)1, A.I.R. 1934 Bom. 168. Prior to this, the Madras High Court had taken the view, in (Jagannatha Sastry v. Sarathambal Ammal others)2, A.I.R. 1923 Madras, 321, that in cases covered by sub-rule (1) of Rule 4, the Court cannot refuse to issue a commission especially in the case of persons who, owning to illness etc., are unable to attend the Court. in Dhanbai Cooper's case this Court has held as follows :- “A party asking for the issue of a commission to examine witnesses is not entitled as of right to such an order…..” 5. This view was followed by the Gujarat High Court in (Shah Velji Nagji v. Hemkuverbai, and others)3, A.I.R. 1973 Gujarat 207. in Dhanbai Cooper's case this Court has held as follows :- “A party asking for the issue of a commission to examine witnesses is not entitled as of right to such an order…..” 5. This view was followed by the Gujarat High Court in (Shah Velji Nagji v. Hemkuverbai, and others)3, A.I.R. 1973 Gujarat 207. This judgement of the Gujarat High Court deals specifically with the question as to whether a party has got a statutory right to examine a witness on commission. Following the decision of the Bombay High Court in Dhanbai Cooper's case, the Gujarat High Court held that use of the word "may" indicates that the Court has the discretion either to issue commission or not to issue commission. No party to the litigation has a statutory right for getting a commission issued. Mr. Mehta, therefore, has not insisted that the petitioner in the instant case has a right of getting the commission issued. 6. He has, however, referred to the proviso which, as mentioned above, was inserted in the year 1976. According to him, if a person cannot be ordered to attend a Court in person under Order XVI, Rule 19 of the Code, then it is mandatory for the Court to issue a commission. Therefore, before one proceeds to examine whether the occasion for the mandatory issue of a Commission has arisen under the proviso to Rule 4(1) of Order XXVI of the Code, one must necessarily has to find out whether on the facts of this case the witnesses cannot be summoned under Order XVI, Rule 19 of the Code. It will be profitable to reproduce this entire provision because every part of it is important while interpreting it. "No one shall be ordered to attend in person to give evidence unless he resides--- (d) within the local limits of the Court's ordinary original Jurisdiction, or (b) without such limits but at a place less than one hundred or (where there is railway or steamer communication or other established public conveyance for five sixths of the distance between the place where he resides and place where the Court is situate) less than five hundred kilometres distance from the Court-house : Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person.” 7. From the above it is seen that the Court is prohibited from issuing summons to a witness in certain circumstances. But positively, it says that a person who is residing within the local limits of the Court having ordinary original jurisdiction can be ordered to attend in person to give evidence. If, however, a person is residing outside the Court's ordinary original jurisdiction, he can be ordered to attend to give evidence, in certain circumstances. One circumstances is that even if a person is residing outside the limits but within hundred kilometres, then he can be ordered to attend in person. Similarly, a person residing beyond hundred kilometres but within 500 kilometres can be ordered to attend in person if five-sixths of the distance between the place where he resides and the place where the Court is situated (or being necessarily within five hundred kilometres) is covered by some established public conveyance. These are the three types of witnesses who can be ordered to attend in person to give evidence. Now the fourth type of witness is covered by the proviso to Rule 19 of Order XVI. This proviso says that if transport by air is available between the two places mentioned in this rule and if the witness is paid the fare by air, the Court may order him to attend in person. 8. Mr. Mehta urged the view that the proviso does not increase the distance mentioned in Clause (b) of Rule 19. In any case the person must be within a distance of five hundred kilometres from the place where the Court is situated. The interpretation suggested by Mr. Mehta makes the use of the words “the two places mentioned in this rule” totally meaningless. When the proviso is talking of the two places mentioned in the rule, one must see the preceding part of the rule where the two places are stated. The two places referred to are, obviously, the place where the witness is residing and the place where the Court is situated. When therefore, these two places, namely the place where the witness is residing and the place where the Court is situated, are connected by air and the witness to be examined is paid the fair by air, then he will be within the reach of the other of the Court under Order XVI Rule 19 of the Code. When therefore, these two places, namely the place where the witness is residing and the place where the Court is situated, are connected by air and the witness to be examined is paid the fair by air, then he will be within the reach of the other of the Court under Order XVI Rule 19 of the Code. No interpretation other than this one is possible on the clear language of the provision. 9. This view is also supported by what has been mentioned in the Statement of Objects and Reasons, accompanying the bill leading to the new provision. The Statement of Objects and Reasons mentions as follows :- “In view of the improved facilities for transport, Rule 19 is being amended to increase the distance specified therein and also to provide that where air transport is available and the air fare is paid to the witness, he may be required to attend in person irrespective of the distance of the place from which he is called upon to appear”. Judicial notice is taken of the fact that Delhi and Bombay are connected by air and, therefore, though Delhi is more than five hundred kilometres away from Bombay, the Court in Bombay can order a witness in Delhi to attend the Court in Bombay if the air fare of that witness is paid. 10. Once this is understood, obviously there is no obligation on the part of the Court to order the witness from Delhi to be examined on commission as provided for in Order XXVI, Rule 4 of the Code. It is true that even a witness who can be subject of an order under Order XVI, Rule 19 can also be examined on commission if the Court in its discretion thinks fit to do so. This is so because Clause (a) of Rule 4(1) of Order XXVI mentions “any person resident beyond the local limits of its jurisdiction", that is, any person who is included in Clause (b) and the proviso to Rule 19 of Order XVI. But as I have already noticed, this is only a matter of discretion, which discretion, of course, must be exercised in the interests of justice. But this much is clear that a Court is under no obligation to issue a commission to a person who can be reached by an order under Order XVI, Rule 19 of the Code. 11. But as I have already noticed, this is only a matter of discretion, which discretion, of course, must be exercised in the interests of justice. But this much is clear that a Court is under no obligation to issue a commission to a person who can be reached by an order under Order XVI, Rule 19 of the Code. 11. This is the view which has been taken in (Sri Ram v. Ashwani Kumar another)4, A.I.R. 1978 Jammu Kashmir, 78 and I agree with the same. Mr. Zaiwalla has also pointed out that apart from the question of the demeanour of the witness, there is the question of cross-examining the said witnesses who are to be examined on behalf of the petitioner as expert witnesses. For any such cross-examination the respondent will also require the assistance of an expert. Obviously, say Mr. Zaiwalla, and in my opinion rightly, the respondent cannot be compelled not only to go to Delhi with an Advocate but also with persons whose presence is necessary for the effective cross-examination of the witnesses. In the instant case the testimonies of the doctors are not of a formal nature. As the petitioner himself says, the doctors are to be examined to prove that his mother has been advised to migrate from Delhi to Bombay. If this is so, it will be one of the very important factors to be considered while examining the case of the petitioner about his bona fide and reasonable requirement of the suit premises. The learned trial Judge has given reasons which cannot be said to be irrelevant for refusing to exercise the discretion in favour of the petitioner . Hence no interference is warranted under Article 227 of the Constitution. 12. In the result, the petition fails. Rule is discharged with no order as to costs. Rule discharged. -----