Judgment : Two revisional applications were moved challenging Order No. 148 dated 25th June. 1987 passed by the learned Minsiff, Alipore in Title Suit No. 412 of 1977 and I propose to dispose of both the applications inasmuch as the petitioner in both the applications are parties in the same suit and have challenged the same order passed in the said suit. 2. Petitioner, in the first revisional application i.e., C.O. No. 1708 of 1987, is the plaintiff in Title Suit No. 412 of 1977 who filed a suit against one Manik Chandra Das, the predecessor-in-interest of the opposite parties/defendants who are also petitioners in the second revisional application. 3. Initially, the suit was filed in the years 1975 for eviction, mesne profits and recovery of arrears of rent etc., bearing T.S. No. 105 of 1975 in the 3rd Court of Munsiff at Alipore against Manik Chandra Das and after his death, Ashis Kumar Das and Others were substituted as defendants in the said suit and the suit was renumbered as T.S. No. 412 of 1977 in the 1st court of Munsiff at Alipore. 4. Initially petitioner/plaintiffs' case, in brief is that by virtue of registered deed of lease dated April 1, 1959, executed by the petitioner on the one hand and one Manik Chadra Das, the predecessor-in-interest of the opposite parties on the other, the said Manik Chandra Das took tenancy of the said land for a term of 15 years commencing on and from April 1, 1959 and ending with March 31, 1974. There was a stipulation in the said lease deed providing, inter alia, that the rent payable by the lessee for the first eight years from April 1, 1959 to March 31, 1967 would be Rs. 210/- per English calender month and for the remaining seven years, from April 1, 1967 to March 31, 1974, rent would be Rs. There was a stipulation in the said lease deed providing, inter alia, that the rent payable by the lessee for the first eight years from April 1, 1959 to March 31, 1967 would be Rs. 210/- per English calender month and for the remaining seven years, from April 1, 1967 to March 31, 1974, rent would be Rs. 250/- per English calender month, that the lessee would pay both shares of municipal tax, for the demised land and structures, that in case of defaulting payment of rent and taxes the lessor would be entitled to have Receiver appointed from court, that the lessee would not sub-let or transfer or encumber the tenancy without the written permission of the lessor, that the lessee would carryon body building and repairing business of motor cars and buses on the demised land and that on the expiry of the term of the lease, the lessee would be liable to vacate and deliver vacant possession of the demised land to the lessor alongwith under-ground sewerage, privies, water and gas pipe after removing the structure and materials therefrom, failing which the lessor would be entitled under the law to eject the lessee from the land and structures standing thereon and the lessee would liable for all costs and damages thereof. It was also indicated and contended that the predecessor-in-interest of the opposite parties i.e., Manik Chandra Das, since deceased, who was an experienced businessman owing property in Calcutta, executed the said lease deed out of his own free will & volition after taking independent legal advice and himself presented the same deed for registration. Petitioner/plaintiff's further case was that after expiry of the lease on March 31, 1974, the predecessor -in-interest of the opposite parties did not vacate the suit premises as per terms of the lease deed despite demand and continued to occupy the same as a tresspasser. On February 24, 1975, petitioner/plaintiffs was compelled to file Title Suit No. 105 of 1975 which was subsequently renumbered as T. S. No. 412 of 1977. It was also contended that predecessor-in-interest of the opposite parties had also defaulted in of rents from July, 1973, till the expiry of the lease and had illegally sub-let portions of the suit land without the knowledge and consent of the opposite parties. 5. It was also contended that predecessor-in-interest of the opposite parties had also defaulted in of rents from July, 1973, till the expiry of the lease and had illegally sub-let portions of the suit land without the knowledge and consent of the opposite parties. 5. Manik Chandra Das original defendant, since deceased, claimed himself to be the Thika tenant in respect of the suit premises since the time of the petitioners/plaintiffs' father and therefore, inta alia, contended by filing the written statement, that the suit was not maintainable without any notice under section 106 of the Transfer of Property Act and also under section 4 of the Thika Tenancy Act. Opposite parties also denied that there was any arear rent payable by their predecessor and predecessor of the opposite parties had been depositing the rents 'since' the month of July, 1973 in the court as the court of Thika Controller, month by month, after the month of February, 1975. 6. Sometime on June 19, 1980, the learned Munsiff dismissed the suit holding that the opposite parties were Thika tenants against which an appeal was preferred which was allowed on April 15, 1981, holding, inter alia. that on the face of the lease the opposite parties were net Thika tenants but the lower court remanded the suit to the learned Munsiff for deciding only the specific issue, namely, whether the lease dated April 1, 1959, was vitited by misrepresentation and undue influence. The said order passed on April 15, 1981, by 12th Additional District Judge was challenged before the Hon'ble High Court at Calcutta and the appeal was registered under S.A.T. No. 1593 of 1981 and on April 1, 1982, this court dismissed the appeal at the stage of admission. Sometime on May 25, 1982, learned Munsiff dismissed the said application for recording abatement of the suit under section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 against which a revisional application was preferred which was registered as C.O. No. 2094 of 1982 and on August 13, 1982, this Court affirmed the order of the learned Munsiff dated May 25, 1982, by dismissing the said revisional application. 7. On 4th October, 1982, opposite parties/defendants applied for amendment of written statement and the said application was allowed by the learned Munsiff on 28th January, 1984. 8. 7. On 4th October, 1982, opposite parties/defendants applied for amendment of written statement and the said application was allowed by the learned Munsiff on 28th January, 1984. 8. Petitioners/plaintiff challenged the said Order dated January 28, 1984 and this Court, by order dated May 31, 1984 set aside the order of the learned Munsiff and allowed petitioner's revisional application in C. R. No. 151 of 1984 observing, inter alia, that the opposite parties could not amend their written statement in order to circumvent the findings of fact concluded right-up to this Hon'ble Court that they are not Thika tenants under the lease dated April 1, 1959. Against the order dated May 31, 1984, opposite parties/defendants filed a petition for special leave to appeal to the Hon'ble Supreme Court of India which was registered as S. L. P. No. 7883(C) 84 and the said special leave petition was dismissed by the Supreme Court. 9. After a protracted battle between the parties, on April 22, 1985. the suit was fixed for peremptory hearing but was adjourned to June 3, 1985 at the instance of the opposite parties/defendants. On June 3, 1985 petitioner/plaintiff was examined in chief and was asked only one question in cross-examination and further cross-examination was deferred at the instance of the opposite parties/defendants. On June 19, 1985, opposite parties/defendants called upon the petitioner/plaintiff to produce the original of a carbon copy of an alleged letter written by the original defendant, Manik Chandra Das, since deceased, to the plaintiff i.e., Mrs. Rekha Mukherjee. In the said carbon copy produced by the opposite parties/defendants petitioner/plaintiff signature and rubber stamp impression were shown. Aforesaid alleged carbon copy of an alleged letter purported to have been written on March 4, 1959, by the orginal defendant, Manik Chandra Das since deceased to Smt. Rekha Mukherjee allegedly requesting petitioner/plaintiff to grant a lease of the suit property for a period of eight years. It was contended by the petitioner/plaintiff that the alleged carbon copy, produced by opposite parties/defendants was fabricated by the opposite parties/ defendants for ulterior motive. It was contended by the petitioner/plaintiff that the alleged carbon copy, produced by opposite parties/defendants was fabricated by the opposite parties/ defendants for ulterior motive. It was indicated that only on June 19, 1985 opposite parties/defendants for the first time, filed an application calling upon petitioners/plaintiffs to produce the original of the carbon copy letter dated March 4, 1959 though as far back as on November 10, 1976, petitioner/plaintiff in her affidavit of documents disclosed the deed of lease dated April 1, 1959 (which was marked Exhibit No. 1), corporation rate bills, rent counter foil books and tax receipts and no other documents whatsoever and the opposite parties had never for a moment challenged the affidavit of documents filed by the petitioners. 10. On June 25, 1985, opposite parties/defendants asked for adjournment of hearing of the suit on the ground of the death of their close relative who was also material witness and accordingly the hearing was adjourned to July 8, 1985. 11. On July 8, 1985, petitioner/plaintiff was cross-examined and in the course of cross-examination petitioner/plaintiff stated that from 1959 to 1980 petitioner/plaintiff resided at her husband's quarter at Bengal Engineering College, Shibpur, When petitioner was confronted with the aforesaid carbon copy of letter in the course of cross-examination, petitioner denied the factum of such letter and also denied categorically genuineness of the signature and rubber stamp impression. During the cross-examination petitioner was also confronted with nine rent receipts which were admitted by the petitioner as genuine rent receipts bearing signature of the petitioners. On the same day i.e., on July 8, 1985 opposite parties/defendants applied for sending the alleged carbon copy of the letter to the Hand Writing Department, C. I. C., West Bengal, Bhabani Bhavan, for ascertaining the genuineness and correctness of the signature and rubber stamp impression appearing in the said carbon copy letter, and in the same application opposite parties filed an application stating that the above document was misplaced and that is why opposite parties could not produce the same earlier. The learned Munsiff on the same day allowed an application of the opposite parties/defendants, for keeping the aforesaid documents i.e., carbon copy letter dated March 4, 1959, in safe custody. 12. On July 18, 1985. The learned Munsiff on the same day allowed an application of the opposite parties/defendants, for keeping the aforesaid documents i.e., carbon copy letter dated March 4, 1959, in safe custody. 12. On July 18, 1985. by the order of the learned Munsiff the alleged carbon copy was sent to the DIG, CID, West Bengal and by subsequent orders dated July 23, 1985 and August 1, 1985 the learned Munsiff sent the disputed signature (R. Mukherjee) appearing on the disputed carbon copy letter dated March 4, 1959 (Marked X) to the Special Superintendent of Police, Criminal Investigation Deptt., West Bengal for comparison with petitioner/plaintiffs admitted signatures on the rent receipts, namely Exhibit Nos. A, A1, A8 & A9. The Director of questioned Documents, Examination Bureau, Criminal Investigation Deptt, West Bengal by his report dated September 24, 1985, expressed his opinion that disputed signature alleged to be that of petitioner/plaintiff on the alleged copy letter marked "X" was not a genuine one and had been traced from the admitted signature marked "Y/3" and the said report has been marked as Exhibit No. 7 along with photographs and other documents sent for examinations. 13. Opposite parties/defendants on 2nd September, 1985 cited four witnesses namely 1. Anil Kumar Rakshit, 2. Bhubaneswar Biswas, 3. Swapan Kumar Das, 4. Ajit Kumar Mondal and on September 16, 1985, Opposite Parties/Defendant No. 1 Ashis Kumar Das started deposing as D.W. No. 1 and ultimately on November 11, 1986 deposition of Defendant No. 1 was completed. On December 5, 1986, opposite parties/defendants prayed for adjournment to produce their witnesses and the said prayer was allowed on the undertaking that the opposite parties would definitely produce their witnesses on the subsequent date. On December 17, 1986, opposite parties prayed for adjournment to produce another witness Swapan Kumar Das in the 3rd week of January, 1987 and simultaneously opposite parties filed several applications for examining on commission there, two remaining witnesses namely A.K. Rakshit and Bhubaneswar Biswas and also Defendant No.3 Smt. Gouri Das, though Defendant No.3 was not figured in the list of witnesses filed on 2nd September, 1985. The learned Munsiff on Dec. 17, 1986 allowed the applications and by order dated December 22, 1986 the learned Munsiff appointed Smt. Anita Sarkar, learned Advocate, for examining Opposite Party No.3 i.e., Smt. Gouri Das. Mr. The learned Munsiff on Dec. 17, 1986 allowed the applications and by order dated December 22, 1986 the learned Munsiff appointed Smt. Anita Sarkar, learned Advocate, for examining Opposite Party No.3 i.e., Smt. Gouri Das. Mr. Dhirendra Chandra Barman, learned Advocate to examine Anil Kumar Rakshit and Kartik Chandra Das, learned Advocate to examine Bhubaneswar Biswas on commission at their respective residences and also to submit their respective reports within 15 days from the date of receipt of their respective writs. On January 29, 1987, writ was received by the learned Advocate-commissioners namely Smt. Anita Sarkar, Advocate, Mr. Dhirendra Ch. Barman, Advocate and Mr. Kartik Ch. Das, Advocate but the other witness Swapan Kumar Das who was required to be produced in the court on the same day was not produced by the opposite party. On February 5, 1987 at the instance of opposite parties/defendants, prayer was made for adjournment of the sitting of the commission to examine Shri A. K. Rakshit on the ground that he had been engaged for consultation in the Hon'ble High Court and ultimately on March 14, 1987, 1st sitting was held, and thereafter, on May 13, 1987 and June 29, 1987 two sittings were held by Smt. Anita Sarkar, learned Advocate-commissioner to examine the Opposite Party No.3 Smt. Gouri Das. On April 22, 1987 opposite parties prayed for adjournment for sitting of commission to examine the Defendant No.3 on the ground that she had gone to visit her grand-son at nurshinghome. 14. On February 12, 1987 an application, at the instance of the opposite parties was filed before the learned Munsiff praying for a direction upon the learned Commissioner, appointed to examine Shri A. K. Rakshit, to take the said lease deed dated April 1, 1959 (Exhibit No. 1) and also the fabricated copy of the letter dated March 4, 1959 (Marked X for indentification) and against that application dated 12th February, 1987 petitioner/plaintiff filed written objection. On May 22, 1987 petitioner/plaintiff filed an application praying for withdrawing the commissions to examine witnesses of the opposite parties, indicating and contending that the medical certificate produced in support of the opposite parties' application to examine the Opposite Party No.3. was not trustworthy. On May 22, 1987 petitioner/plaintiff filed an application praying for withdrawing the commissions to examine witnesses of the opposite parties, indicating and contending that the medical certificate produced in support of the opposite parties' application to examine the Opposite Party No.3. was not trustworthy. Against the same application dated May 22, 1987, opposite parties filed their written objection denying the averments of the petitioner/plaintiff and indicating and contending that witness A. K. Rakshit and Bhubaneswar Biswas were still ailing. Opposite parties tendered fresh medical certificates in support of their original applications to examine those witnesses on commission. But the Opposite Party No.3, Smt. Gouri Das did not produce any medical certificate whatsoever justifying the appointment of commission and/or retention of Advocate-commissioner appointed by the learned Munsiff. 15. On June 25, 1987 by an Order No. 147, the learned Munsiff disposed of both the applications dated 12th February, 1987 as also May 22, 1987. Learned Munsiff rejected the application dated February 12, 1987, at the instance of the opposite parties, praying for a direction upon the learned Advocate-commissioner, appointed to examine Shri A. K. Rakshit, to take the lease deed dated April 1, 1959 (Exhibit No. 1) and the document marked "X for identification" to the place of commission, from the file of the instant suit. In the said order dated June 25, 1987, the learned Munsiff allowed the application dated May 22, 1987 filed at the instance of the petitioner/plaintiff, partly in respect of two witnesses i.e., Shri A.K. Rakshit and Bhubaneswar Biswas by withdrawing commissions. The learned Munsiff did not withdraw commission in respect of Opposite Party/Defendant No.3 Smt. Gouri Das. This Order No. 148 dated 25.6.1987 is the subject-matter of challenge by the parties before me in both the revisional applications. 16. Mr. Mukherjee, learned Advocate, appearing on behalf of the petitioner in C.O. No. 1768 of 1987, challenged the impugned Order No. 147 dated 25th June, 1987 alleging, inter alia, that the Trial Court has failed to discharge the mandatory provisions as prescribed in the Order 26, Rule 18B of the Code of Civil Procedure read with Rule 226 of the Civil Rules and Orders. Mr. Mr. Mukherjee has contended that where a power to issue an order appointing commission under Order 26, Rule 1 of the Code of Civil Procedure is conferred by the statute, the statute has also empowered the court to vary, rescind, amend the said order by recalling commission on the principle laid down under section 21 of the General Clauses Act. Mr. Mukherjee also contended that for the issue of a commission to examine witnesses, it is sine-qua-non that the court is required to be satisfied, inter alia, on the bona fide of the claim of the parties, whether the endeavour for appointment of the commission was directed to delay the proceedings, whether the evidence was necessary, so far particular witness is concerned for effective adjudication of dispute, whether the witness to be examined on commission can give sufficient material to the issue and more/evidence precisely, whether there is any good reason why the witness cannot be examined in court in the usual way. Mr. Mukherjee seriously challenged the finding of the Trial Court in refusing to recall the commission in respect of the witness Smt. Gouri Das, inter alia. "Admittedly the Commissioner of Smt. Gouri Das is on the verge of completion............". inasmuch as it is nobody's case that commission in respect of Smt Gouri Das had done substantial progress on the other hand, it is the admitted position that Smt. Gouri Das was examined only once on commission and several adjournments were asked for at the instance of the said witness. 17. Mr. Mukherjee has made a reference to section 75 of the Code of Civil Procedure as to the scheme and scope of the indentical proceedings for issuing commission. Section 75 contemplates, inter alia, "subject to such conditions and limitation as may be prescribed, the court may issue a commission-a) to examine any person." Mr. Mukherjee tried to impress upon this court that Rules 218, 219, 220 in Chapter 11 of the Civil Rules and Orders, Volume 1, specifically, have prescribed modalities for execution of such commission. 18. Rule 219 of the Civil Rules and Orders contemplates, inter alia, 1) "Every order for the issue of a commission shall appoint a date allowing sufficient time for its execution and return. 2) If on receipt of the commission or after starling work in execution thereof. the commissioner is of opinion that the time allowed is insufficient. 18. Rule 219 of the Civil Rules and Orders contemplates, inter alia, 1) "Every order for the issue of a commission shall appoint a date allowing sufficient time for its execution and return. 2) If on receipt of the commission or after starling work in execution thereof. the commissioner is of opinion that the time allowed is insufficient. he should at once refer the matter to the court for orders stating the extra time required, and must not postpone his application until the time allotted is about to expire. If the application appears to be reasonable, additional time may be allowed, the parties being duly informed of the revised date". 19. Rule 220 contemplates, inter alia. "Commission should not be executed piece meal or at intervals. When the work of a commission has once begun, it shall be continued from day to day and through out the day until it is completed, unless an adjournment is necessary in exceptional circumstances in which case the commission should at once inform the court and seek its direction". 20. Mr. Mukherjee, refering to the modalities of section 75 of the Code of Civil Procedure read with Rules 218, 219, 220 of the Civil Rules and Orders, has further contended that the Trial Court ought to have complied with the mandatory provisions laid down under Order 26, Rule 18B of the Code of Civil Procedure and invited courts' attention to the scheme of Order 26. Rule 18B which was incorporated in the Code of Civil Procedure by the Amendment Act, 1976. 21. The submissions advanced by Mr. Mukherjee on behalf of the petitioner required a close scrutiny and in order to appreciate the trend of submissions the following sequences of events are required to be placed on record. Admittedly by Order No. 128 dated 17th December, 1986, Trial Court appointed three learned Advocates as commissioners to examine three witnesses and commissioners were directed to submit evidence recorded by them within 15 days from the date of receipt of writ. 22nd December, 1986 was fixed for filing money receipts against fees for the commissioners. On 22nd December, 1986 by Order No. 129 Trial Court issued writs and fixed 15th January, 1987 for submission of commissioner's report. The Trial Court also fixed 29th January, 1987, for further hearing of the suit. 22nd December, 1986 was fixed for filing money receipts against fees for the commissioners. On 22nd December, 1986 by Order No. 129 Trial Court issued writs and fixed 15th January, 1987 for submission of commissioner's report. The Trial Court also fixed 29th January, 1987, for further hearing of the suit. Admittedly writs were sealed and signed on 19th January, 1987, and writs were received by the Advocate-commissioner on 29th January, 1987. On diverse date s proceedings before the commissions were adjourned which was recorded by the Trial Court in its Order No. 135 dated 17.2.1987, Order No. 136 dated 3rd March, 1987, Order No. 138 dated 11th March, 1987. By Order No. 138 dated 11th March, 1987, Trial Court directed the commissioner to submit their report by 20th March, 1987, when further hearing of the suit was fixed. On 20th March, 1987, Trial Court, by Order No. 140 resumed further hearing. P.W. No.3 was cross-examined in part and the case was adjourned to 31st March, 1987, for further hearing of the suit but admittedly no extension was granted to the commissioners for filing report. 22. By the order dated 17th December, 1986, Trial Court, by appointing Advocate-commissioners, directed them to submit evidence recorded by them within 15 days from the date of the receipt of the writ. Admittedly the writ was received on 29th January, 1987, and in terms of the order dated 17th December, 1986 the life of the commission had expired after 15 days from the date of the receipt of writ i.e., 12th February, 1987. The Trial Court admittedly by Order No, 133 dated 11th March, 1987, by invoking its jurisdiction and/or authority within the meaning of Order 26, Rule 18B of the Code of Civil Procedure, had extended life of the commission from time to time and till 20th March, 1987 for return. But on 20th March, 1987, no prayer was made for extension of the tenure of the commission and the Trial Court obviously was not inclined to extend returnable date of commission. 23. Rule 18-B of Order 26 of the Code of Civil Procedure added by C.P.C. (Amendment Act, 1976), provides, inter alia : "Court to fix a time for return of commission. 23. Rule 18-B of Order 26 of the Code of Civil Procedure added by C.P.C. (Amendment Act, 1976), provides, inter alia : "Court to fix a time for return of commission. The court issuing a commission shall fix a date on or before which tile commission shall be returned to it after execution, and the date so fixed shall not be extended except where the court, for reasons to be recorded, it satisfied that there is sufficient cause for extending the date." Though the Civil Rules and Order prescribed modalities for the commission, its execution and return, the legislature, by their wisdom though it fit to incorporate Rule 18B in the Amended Act, 1976, for obvious reason that the present mechanism in the delivery system of justice, within the frame work of the existing laws, have failed in bringing desired changes for the expeditious dispendation of justice. Undoubtedly, mechanism of delivery of justice requires a new outlook to inspire confidence in the minds of the litigants and also for a speedy justice. Accordingly in order to avoid delay, by incorporating Rule 18B, a mandatory provision has been incorporated directing the court to fix a date on or before which the commission should be returned to it after execution. The said amendment also restrained the court not to extend the returnable date of the commission except where sufficient grounds are available to the court for extension of the returnable date, On proper construction of Rule 18B, Order 26 of the Code of Civil Procedure, assumption of jurisdiction by the commission after expiry of the returnable date or after expiry of such date, as extended by the court from time to time, is illegal and commission becomes functus officio after such expiry. 24. Therefore, carriage of the incidental proceedings arising out of the suit in respect of issuing a commission by the trial Court to examine the witnesses, suffers a mandate by Order 26, Rule 18B, of the Code of Civil Procedure, as amended by Amendment Act, 1976. Trial Court has had no opportunity and/or authority to consider, even as application for recalling commission inasmuch as application, for recalling commission dated 22nd May, 1987, should be deemed to be infructuous after 20th March, 1987. Trial Court did not extend the returnable time fixed for the commission, as extended from time to time and till 20th March, 1987. 25. Trial Court has had no opportunity and/or authority to consider, even as application for recalling commission inasmuch as application, for recalling commission dated 22nd May, 1987, should be deemed to be infructuous after 20th March, 1987. Trial Court did not extend the returnable time fixed for the commission, as extended from time to time and till 20th March, 1987. 25. Though in view of the aforesaid observations, it is not necessary to consider the other submissions made at the Bar for disposal of these revisional applications but as some paints were canvassed by the learned Advocates appearing on behalf of the parties, I will deal with them in brief. 26. Mr. Mukherjee has contended that Smt. Gouri Das is not a material witness so far the subject-matter of the adjudication before the Trial Court is concerned inasmuch as the Trial Court was directed to frame and decide a specific issue, namely, whether the lease deed dated April 1, 1959, was vitiated by misrepresentation and undue influence. If it evident from the testimony of Opposite Party No. 1, Ashis Das, one of the said three witnesses, i.e., Defendant No.3 and who sought for commission, was not present at the time of negotiation so far the instrument of lease is concerned. Therefore, it has been contended that deposition of Opposite Party No. 3 witness would be immaterial and she was not competent to depose on the only issue left to be tried by the learned Munsiff for this adjudication. In the cross-examination, Ashis Kr. Das, Opposite Party No. 1 categorically deposed, inter alia, "at the time of talk for lease on 3.3.1959, myself and probably Bistu Pada were present, none else was present". Therefore, it is obvious that Smt. Gouri Das, Opposite Party No.3, was not present during the negotiation of the said lease document. 27. Mr. Mukherjee in support of his contention, that Smt. Gouri Das is not a material witness, cited (1) Law Reports 1883(3) Chancery Division 522 (524 and 528), (2) AIR 1921 (Lower Burma) 6, (3) AIR 1946 Madras 331, (4) 19 Indian Cases 544 and (5) 1896(2) Chancery Division 611. Smt. Gouri Das, Defendant No.3 and other two witnesses are yet to depose in the pending suit. Though in the submission of Mr. Smt. Gouri Das, Defendant No.3 and other two witnesses are yet to depose in the pending suit. Though in the submission of Mr. Mukherjee there is substantial force, but I do not wish to deal with this issue as I do not want to pre-judge the issue before effective adjudication by the Trial Court. Mr. Roy Chowdhury opposing Mr. Mukherjee has contended that Soot. Gouri Das, Defendant No.3, being a party to the suit should be a necessary party and her evidence obviously must be material so far adjudication of the dispute is concerned. Whether Soot. Gouri Das and other two witnesses are material or not. 1 decline to make any observation in this regard. 28. Mr. Mukherjee, challenging the impugned order, has contended that while passing order on 17th December, 1986, appointing commission under Order 26, Rule 1 and also while passing order on 25th June, 1987, rejecting petitioner's application for withdrawing commission in respect of Smt. Gouri Das, Defendant No.3, there was no clear finding as regards the necessity for issuing a commission for the examination of witnesses and in both the orders no reasons were recorded. Mr. Mukherjee invited attention of this court to the Order No. 128 dated 17.12.86, inter alia. "(1) The defendants are directed to pay Rs. 60/- being for witness commissioner to each of the things noted witness/commissioner. Learned Kartik Das is appointed as Commissioner to examine the witness, Mr. Bhubaneswar Biswas, learned Smt. Anita Sarkar is appointed as Commissioner to examine the Defendant No.3, Smt. Gouri Das, learned Dhirendra Chandra Barman is appointed as Commissioner to examine the witness, Shri Anil Kumar Rakshit. The Commissioners are directed to go to the locale after serving notice upon the witness and the parties. The Commissioners are directed to submit evidence recorded by them within 15 days from the date of receipt of the writ (2) 22.12.86 filing money receipts." 29. Mr. Mukherjee also contended that application dated 22nd May, 19S7, at the instance of the plaintiff/petitioner for withdrawing commissions was passed without recording reasons and without justifying retention of commission in respect of Smt. Gouri Das, Defendant No.3. Mr. Mukherjee also contended that application dated 22nd May, 19S7, at the instance of the plaintiff/petitioner for withdrawing commissions was passed without recording reasons and without justifying retention of commission in respect of Smt. Gouri Das, Defendant No.3. The only finding of the Trial Court in respect of Smt. Gouri Das is to the extent, inter alia, "admittedly the commissioner of Smt Gauri Das is on the verge of completion and while the Con1missioner of Shri A. K. Rakshit and Bhubaneswar Biswas are yet to beging though six months have already lapsed". And the Trial Court, thereafter, passed an order. "Let the petition of the plaintiff dated 22.5.87 be allowed on contest it part. The witness commissioners of A.K. Rakshit and Bhubaneswar Biswas are hereby withdrawn. The Commissioners appointed for recording evidence of A.K. Rakshit and Bhubaneswar Biswas are directed to return the writs immediately. Inform learned witnesses' Commissioners". The Trial Court neither dismissed the application. dated 22.5.1987 so far Defendant No. 3 is concerned without justifying retention of the commission nor recorded any order allowing extension of the teanure of the Commission. Admittedly there was no material before the Trial Court to Justify the retention of commission even after the commission was appointed long before and even though the life of the commission has expired by lapse of time. Mr. Mukherjee also indicated and contended that the court, by issuing commission without being satisfied as to the necessity of such appointment, has acted against the scheme of the Code of Civil Procedure inasmuch as since after amendment in the year 1976, Rule 1 of Order 26 provided for the issue of the commission for the examination of witness on interogatories or otherwise. The rule was a mended in 1976 to provide that issue of the commission should be ordered only in special cases and accordingly by way of amendment, the following directive was added to Rule 1 of Order 26, inter alia. "provided that a commission for examination on interogatory shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do". No doubt the court can exercise its discretion so far appointment of commission is concerned but that discretion must be a judicious discretion after recording reasons and/or justifying the necessity of such commission. 30. Mr. No doubt the court can exercise its discretion so far appointment of commission is concerned but that discretion must be a judicious discretion after recording reasons and/or justifying the necessity of such commission. 30. Mr. Mukherjee, in support of his contention, cited in (6) Panch Kari Mitra v. Panchanan Saha reported in (1924) 84 Indian Cases page 9 and contended that if sickness or infirmity is alleged, character and gravity of the sickness or infirmity have got to be assessed and the risk consequent upon a refusal to issue a commission will have to be taken into consideration. It was also contended that court must not issue commission indiscriminately as a routine matter. It is correct that court has to arrive at the conclusion whether it is or it is not necessary for the purpose of justice, that the ordinary mode in which evidence is to be taken should be departed from, and unless the court does arrive at the conclusion that it is necessary, it is the right of the person who opposes the examination to the way proposed, to have the evidence taken in the usual way. But at the same time the importance of having the witness present before the court, the advantages that would follow from their examination and cross-examination in the presence of the court and the emergency which might arise of having them confronted or identified should not be altogether lost sight of. It must be borne in mind that when cross-examination are made, the answer to one question is suggestive of other questions and unless the learned lawyers appearing for the parties are to go over and attend the commission so that they may be prepared to meet any possible emergency .or exigency which may arise in the course of cross-examination, it does not appear to me that there would be the same facilities of cross-examination before the commission as there would be, if the witnesses were giving their evidence in court. 31. Mr. Mukherjee challenging the mechanism of issuing commission relied on a decision reported in (7) Satish Chandra Chatterjee v. Kumar Satish Kanta Roy reported in AIR 1923 PC 73: 73 IC 391, in which the practice of indiscriminate issue of commissions has also been condemned. 31. Mr. Mukherjee challenging the mechanism of issuing commission relied on a decision reported in (7) Satish Chandra Chatterjee v. Kumar Satish Kanta Roy reported in AIR 1923 PC 73: 73 IC 391, in which the practice of indiscriminate issue of commissions has also been condemned. It was held, "In my opinion the orders passed by the learned Munsiff did not disclosed that any consideration whatsoever was paid to any of the relevant circumstances in making those orders. The certificates were relied upon as a matter of course and the sufficiency of the certificates does not appear to have been at all considered. To my mind they are, to say least of them very inconvincing and accepting everyone of the statement contained in the certificates to be true, a proper case in issuing a commission in the examination of the opposite parties cannot be said to have been made out". Mr. Mukherjee further contended that the certificate issued by the Doctor in respect of ailment and/or in capacity of Smt. Gouri Das presumably did not satisfy the test laid down in different decision of the privy council. Though no medical certificate was produced by Smt. Gouri Das before the Trial Court at the time of consideration of the application of the plaintiff/petitioner dated 22.5.87 but a medical certificate was made available before this court, filed as annexure to a supplimentary affidavit filed on 17th December, 1987, in, this court. Curiously enough, the impugned order was dated 25th June, 1987 and the certificate annexed to the supplimentary affidavit was dated 1st December, 1987. In the said affidavit affirmed by Ashis Kumar Das, in paragraph 14, averment was made true to the knowledge of the deponent as follows : "That at the relevant time of filing objection against the plaintiff/defendants petition for withdrawal of witness commission, the petitioners with their said objection could not file the necessary medical certificate in support of the Gouri Das's serious illness and the physical of Smt. Gouri Das had subsequently on 1st December, 1987 issued the necessary medical certificate which speaks that said Smt. Gouri Das was absolutely unfit due to her knee injury which if she moves elsewhere could have caused sudden death. A copy of the said medical certificate is annexed hereto." Though the statement made in the paragraph makes no sence and the discripancies and not helpful in furtherance to the cause of Smt. Gouri Das but fact remains that a medical certificate was annexed and obviously in the Medical Certificate, it was not knee injury but something else. However, I will deal with the said medical certificate dated 1st December, 1987, hereinafter. 32. In support of the contention decrying the mode of indiscriminate issue of commissions for examination of witnesses and more so in the instant case, Mr. Mukherjee relied a decision in the case of (8) Berdan v. Greenwood reported in (1882) 20 Ch. D. 764, Lord Justice Baggallay, observed, "We must regard the interest of justice, the interest of the defendants as well as that of the plaintiff, and of course we must consider the nature of the issues which are raised in the pleadings...... "one can well imagine the extreme importance of the defendants in a case of this kind of having the fullest opportunity of thoroughly investigating the claim and testing by cross-examination the witnesses who are called"… "If the witness is a credible witness it is hardly material whether he given his evidence viva voce in court or before a commission, or by affidavit, or in any other form, But we must assume the possibility of his not being a credible witness, and then it becomes of the most extreme importance that the Jury, or the Court which has to decide the question, should have the opportunity of seeing the demean our of the witness, and observing the way in which the various questions which are put to him in cross-examination are answered. Now it has been suggested that the questions for the cross-examination of the plaintiff (assuming that the commission is to issue) have been put in a form which do not indicate any very searching inquiry, or anything as to which there might be any great advantage in his giving his answers before the Jury rather than before the Commissioners, who would report the effect of the answers." 33. Mr. Mr. Roy Chowdhury, relying on a decision, in (9) Irani Mundle v. Naimuddin Sardar reported in 39 Cal LJ 251 (254) contended that as the Trial Court relying on a medical certificate issued a commission, the Trial Court cannot recall the commission as the action of the Trial Court is hit by principle of res judicata. The contention of Mr. Roy Chowdhury was seriously contested by Mr. Mukherjee refering a decision in (10) Arjun Singh v. Mohindra Kumar & Others reported in 1964 (5) SCR 946 . Mr. Mukherjee has indicated and contended that there is substantial distinction between rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order. Dealing with the decisions of the Privy Council in (11) Ram Kirpal Shukul v. Rup Kuari, 11 IA 37, (12) Beni Ram v. Nanhu Mal, 11 IA 181 and (13) Hook v. Administrator General of Bengal (48 IA 37) which are the leading cases, in which principle of res judicata was held applicable .to different stages of the same proceedings, Das Gupta, J. in (14) Satyadhan Ghosal v. Sm. Deorajin Debi, (1960)3 SCR 590 at pp. 602-03 observed, inter alia. "It will be noticed that in all these three cases, viz., Ram kirpal Shukul's case, Beni Ram's case and Hook's case, the previous decision which was found to be res judicata was part of a decree. Therefore though in form the later proceeding in which the question was sought to be raised again was a continuation of the previous proceeding, it was a substance, an independent subsequent proceeding. The decision of a dispute as regards execution it is hardly necessary to mention was a decree under the Code of Civil Procedure and so in Ram Kirpal's case and Beni Ram's case, such a decision being a decree really terminated the previous proceedings. The fact therefore that the Privy Council in Ram Kirpal Shukul's case described Mr. Probyn's order as an interlocutory judgement does not justify the learned counsel's contention that all kinds of interlocutory judgements not appealed from become res judicata, Interlocutory judgements which have the force of a decree must be distinguished from other interlocutory judgements which. are a step towards the decision of the dispute between parties by way of a decree or a final order." 34. are a step towards the decision of the dispute between parties by way of a decree or a final order." 34. Relying on the aforesaid observation, in Arjun Singh v. Mahendra Kumar & Others (Supra), Ayyangar, J, observed, inter alia : "It is needless to point out that interlocutory orders are of various kinds; some like, orders of stay, injunction, or receiver, are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sence, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts of new situations which subsequently emerge. As they do not inpinge upon the legal rights of parties to the litigation, the principle of res judicata does not apply to the findings on which these orders are based, though if application were made for relief on the same basis after the same has once been disposed of, the court would be justified in rejecting the same as an abuse of the process of court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo or to preserve the property pending tile final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, not put an end to the litigation. The case of an application under Order 9, Rule 7 would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the Appellate Court. In that sence, the refusal of the court to permit the defendant to "set the clock back" does not attain finality. But what we are concerned with is slightly different and that is whether the same court is finally bound by that order at later stages, so as to preclude its being reconsidered. Even if the rule of res judicata does not apply it would not follow that on every subsequent day on which the suit stands adjourned for further bearing the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repealed applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle of res judicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts. is not barred on the application of any rule of res judicato, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on that ground that no new facts have been adduced to justify a different order is vital. If the' principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the court, the bar would continue to operate ant preclude a fresh investigation of the issue, whereas in the other case on proof of fresh facts, the court would be competent, may, would be bound to take those into account and make an order conformably to the facts freshly brought before the court." 35. Admittedly on December 17, 1986, Trial Court issued commission at the instance of the defendant/opposite panics for recording evidence of A.K. Rakshit, Bhubaneswar Biswas and Defendant No.3, Smt. Gouri Das, without recording and finding as to the alleged sickness of the witness. On 22nd May, 1987, plaintiff/petitioner made an application for withdrawing of the witness commission, which was allowed so far A.K. Rakshit and Bhubaneswar Biswas are concerned and was dismissed in case of Defendant No.3, Smt. Gouri Das. Now can it be said that by issuing order on December 17, 1986, Trial Court has decided merit of the controversy in issue in the suit. Now can it be said that by issuing order on December 17, 1986, Trial Court has decided merit of the controversy in issue in the suit. Appointment of a commission under Order 26, Rule 1 of the Code of Civil Procedure is only a step towards the decision of the dispute between the parties On the facts and circumstances I consider that the impugned order is an interlocutory order and a decision or direction, in interlocutory proceedings of the type provided for, an order under Order 26, Rule 1, is not of the kind which can operate as resjudicata. Obviously it cannot be held that the Trial Court has no power to alter and/or vary and/or modify his earlier order, with regard to the issue of the commission inasmuch as, such order, appointing a commission, is not a final one and it relates more to the procedural aspect of the suit than to the adjudication on merits. Therefore, there is no reason why Trial Court should not be allowed to modify his order with regard to the issue or non-issue of a commission and thus contention of Mr. Roy Chowdhury fails. 36. Considering the facts and circumstances and also several decisions cited at the Bar, I hold that if sickness and/or infirmity is alleged, the learned Muniff ought to have recorded the reasons which is a sin-quo-non of Order 26, Rule 1, as amended by Act 104 of 1976. Admittedly by not recording reasons and not by justifying the necessity to appoint commission for the examination of interogatories or otherwise, Trial Court has acted in a slipshod manner. While issuing commission the Trial Court had fixed time for return of commission and subsequently extended on diverse dates but Trial Court ought to have considered that the life of the commission expired on 20th March, 1987 as no extension was granted as contemplated in Rule 18B of Order 26 of the Code of Civil Procedure. 37. Indiscriminate issue of commission causes unnecessary expenses to the parties and more so, sometimes the issue of a commission becomes a luxury to the party, but it is expensive to another. 37. Indiscriminate issue of commission causes unnecessary expenses to the parties and more so, sometimes the issue of a commission becomes a luxury to the party, but it is expensive to another. Now, it as become imperative that an abuse of this procedural aspect which enormously increase the cost of litigation without any corresponding benefit to the parties, should be checked by all means and it is expected that Trial Court should consider the other aspects while issuing commission at the instance of the parties and the consequential prejudice to the adversaries. 38. My attention has been drawn to the medical certificate dated l.12.87 in favour of Smt. Gouri Das, annexed to a supplimentary affidavit. In this certificate Doctor has said that "Smt. Gouri Bala Das, aged about seventy years, was advised to take complete bed rest as any movement will cause sudden death, she was admitted in Belview Clinic in 1984 & 1985 and Ramkrishna Mission Seba Pratishthan in 1986. It has not been disclosed in the said medical certificate that whether Smt. Gouri Das would be able to go out of the bed or would be allowed to move outside the house after a specific period as in the near future, Judging from the nature of ailment disclosed in this certificate and also age of Smt. Gouri Das I do not want to make any comment on the capability of the witness Smt. Gauri Das and/or whether Smt. Gouri Das would be able to appear before the court and/or whether Smt. Gouri Das is a material witness. But I do think that the order which I propose to pass will not cause any hardship to Smt. Gouri Das who was advised to take bed rest due to her particular ailments. 39. Accordingly, in my opinion, the order of the learned Munsiff passed on 25th June, 1987 ought to be set aside so far Smt. Gouri Das is concerned and accordingly I do set it aside. I dispose of both the applications and direct that Shri A.K. Rakshit and Bhubaneswar Biswas he directed to depose in the court in the usual way and Smt. Gouri Das be examined on commission by the same learned commissioner in terms of the order dated 17th December, 1986. Though the earlier order dated 17th December, 1986, shall be held to be infructuous in view of my determination hereinbefore. Though the earlier order dated 17th December, 1986, shall be held to be infructuous in view of my determination hereinbefore. I allow Smt. Gouri Das to be examined on commission, by extending the tenure of the commission, only considering her age and particularly state of health as disclosed in the medical certificate. Trial Court is, however, given liberty to change the learned Commissioner, if necessary, and Trial Court should fix a date by which the commission should be returned to it after execution within 15 days from the dale of communication of this order. The learned Commissioner is directed to hold the commission on consecutive days. The trial Court is also directed to complete the evidence of Anil Kumar Rakshit and Bhubaneswar Biswas within a month from the date of communication of this order and, if necessary, by fixing consecutive dates. The Trial Court is also directed to expedite the hearing of the suit and it is expected that the Trial Court will dispose of the suit within three months from the date of communication of the order. Both the applications are disposed of accordingly. There will be no order as to costs.