Judgment :- P.S.Mishra, J. The defendants 1 and 2 in C.S.No.500 of 1988, who were respondents in Application No.2386 of 1991, have preferred this appeal against an order, appointing Advocate Commissioner to record the oral evidence of one Balasubramaniam, the husband of the 3rd defendant, in the suit and the third defendant herself. It is not in dispute that the 1st defendant/appellant is the husband of the 2nd defendant/appellant and the 3rd defendant/ respondent is the sister of the 2nd respondent. The 3rd defendant sold the property bearing No.3, Sixth St., Gopalapuram, Madras to the plaintiff/ respondents 1 to 3 herein, under a registered deed. According to the plaintiffs/respondents, the 3rd defendant delivered vacant possession of the upstairs portion of the house property, at the time of purchase and when they (plaintiffs/respondents) demanded vacant possession from the respondents 1 and 2, of the portion in their occupation, they stated that they would vacate the same but they did not comply. Without going into other details, however, it seems that the 1st appellant herein filed O.S.No.3454 of 1988 on the file of the 12th Assistant Judge, City Civil Court, Madras, seeking a relief of permanent injunction, restraining the plaintiffs/respondents from disturbing their possession. The plaintiffs/respondents, however, filed a suit for declaration and recovery of possession. In the suit filed on behalf of the plaintiff/ respondents the 3rd defendant/respondent filed a written statement, saying that she had no defence to the suit and no objection for the relief asked for by the plaintiffs/respondents and that the suit may be decreed as prayed for, by the plaintiffs/respondents. The written statement has been signed and verified at Singapore or 7. 1991. 2.. It is not necessary for the purpose of this appeal to refer to the controversy and issues in the suit and the respective stand of the parties. All that is necessary, however, is to take notice of the fact that the plaintiffs/respondents decided to call for the 3rd defendant/respondent and her husband, as witnesses, to depose on their behalf and since according to them, the 3rd defendant/respondent and her husband lived in Singapore, they applied for a commission to issue to record their deposition. The grounds on which the commission was sought for are set forth in the affidavit filed in the trial. The grounds on which the commission was sought for are set forth in the affidavit filed in the trial. It is to the effect that- (1) The 3rd defendant/respondent has not challenged the plaintiffs/respondents’ right to the property; (2) The first and second defendants/appellants are squatting on the property by putting forth prevaricating defences; (3) The appellants herein have challenged the execution of the sale deed. Thus if is necessary to prove the due execution of the sale deed. (4) The sale deed was attested by one K.R.Prakash, son of K.R.Balan who was residing upstairs of the suit property. He has vacated and gone away. He is thus not available to depose. (5) The husband of the 3rd defendant/respondent Balasubramaniam is the other attesting witness. His evidence is necessary. After saying as above, it is said on behalf of the plaintiffs/respondents that when contacted on telephone on two occasions, both the 3rd defendant/respondent and her husband Balasubramaniam, expressed their willingness to depose on behalf of the plaintiffs/respondents, but they represented that while the 3rd defendant was unable to move about suffering with arthiritis, the husband of the third defendant Balasubramaniam, was suffering with acute blood pressure and both of them were under constant medical attendance, and therefore, they desired, that if their evidence was required, they should be examined on appointment of a commissioner by this Court. 3.. We shall advert to the principles and provisions of law a little later. At this stage we may notice that the appellants contested the appointment of an advocate commissioner for the purpose of recording the deposition of the 3rd defendant/respondent as well as her husband Balasubramaniam and stated that the plaintiffs/respondents had not furnished any information with regard to the telephone talk and that they had not produced any medical certificate to support their allegations, that both the 3rd defendant/respondent as well as her husband Balasubramaniam were suffering from ailment as alleged. The main objection, however, was on the ground that the implication of examination of the 3rd defendant in the suit was a matter of grave concern and this Court should not allow a party to take advantage of a course, which ordinarily should be avoided list, and the demeanour of the witnesses has to be observed by the court. The main objection, however, was on the ground that the implication of examination of the 3rd defendant in the suit was a matter of grave concern and this Court should not allow a party to take advantage of a course, which ordinarily should be avoided list, and the demeanour of the witnesses has to be observed by the court. The learned trial Judge has further recorded that it is not in dispute that the 3rd defendant/respondent and her husband are relevant witnesses and they are residing outside the jurisdiction of this Court, beyond the territory of the country. He has on that basis proceeded to examine the contentions, to say as follows: " It is well settled that the plaintiff’s having filed the suit in a forum of his choice or in a forum where the suit had necessarily to be instituted cannot except in circumstances of bodily infirmity or other disabling factors, avoid giving evidence in court. A defendant however, is in a. slightly better position. If he is a resident in a far off place, quite a long way from the jurisdiction of the court, he can pray for the issue of a commission to examine him as witness. In this case, the defendants are the residents out of the jurisdiction of this Court. To compel them to come over here at great expense to attend the trial, or give up their case, would be oppressive and unfair and in my opinion it would be wrong to apply to the case of a defendant, the principles that are applicable to the case of a plaintiff asking for a commission to examine himself. In my opinion, the petitioners have made out a case for the issue of commission. It is said that by examining the third defendant and her husband at Singapore the opportunity for cross examining the witness before this Court is lost and that no prejudice would be caused to the third defendant and her husband Balasubramaniam by coming to India and give evidence before this Court, which will also give an opportunity to watch the demeanour of the witnesses. It is also stated that the medical certificates have not been produced by the parties who are to be examined in commission. It is also stated that the medical certificates have not been produced by the parties who are to be examined in commission. I do not feel any doubt about the acceptance of the statement made by the plaintiffs when they say that the third defendant is unable to move about, suffering from Arthiritis and that the husband of the third defendant, viz., Balasubramaniam, is suffering from acute blood pressure, that they are unable to move about and that they are under constant medical attendance. Therefore both of them have represented to the plaintiffs that they have no objection for them to be examined on appointment of a commission by this Court. It is also stated in unequivocal term that they are ready to bear the entire cost of the commission as it is necessary for them to prove the due execution of the document through the evidence of the attesting witness Mr.Balasubramaniam and about the execution of the sale deed by the third defendant. In reply to the arguments of learned counsel for the defendants 1 and 2,Mr.S.A.Rajan, learned counsel for the applicants submitted that his clients are willing to bear the expenses of the counsel for the respondents 1 and 2 also who can cross examine the witnesses at Singapore. It is further represented by the petitioners that since the defendants 1 to 2 have challenged the execution of the sale deed, it has become necessary for them to prove the due execution of the sale deed and as per the provisions of the Evidence Act. The sale deed was attested by Mr.P.Prakash, who was residing in the upstairs portion of the suit property. He was unable to be examined as one of the attesting witnesses since his where-abouts are not known. Hence, the petitioners have filed the present application to examine the third defendant and her husband on commission." Having stated as above, the learned trial Judge has ordered as follows: "Hence I have no hesitation in exercising my judicial discretion in favour of the petitioners. Though the general rule is that the evidence of a witness should be given in a open court and decided by cross examination, the court has got every discretion to relax the Rule in the circumstances specified in the affidavit. The nature of sickness and infirmity has been alleged in the affidavit filed in support of the present application. Though the general rule is that the evidence of a witness should be given in a open court and decided by cross examination, the court has got every discretion to relax the Rule in the circumstances specified in the affidavit. The nature of sickness and infirmity has been alleged in the affidavit filed in support of the present application. Taking into account of the character and gravity of the sickness and the risk, I order issue of commission. The opposite party is entitled to cross examine the witnesses, while the third defendant and her husband Mr.Balasubramaniam are being examined on commission at Singapore at the expenses of the petitioners/plaintiff’s. 4. Certain developments that followed the impugned order make a disturbing reading of the mind of the parties in dispute. The impugned order was passed on 310. 1991 and a copy of the order was made ready on 12. 1991. In the meanwhile however, a warrant had been given to the learned advocate-commissioner to proceed with the commission work. The learned Advocate-commissioner moved the trial court for the extension of time to file the report (the original time fixed by the court being 12. 1991). The commissioner sent a letter on 211. 1991 to the counsel for the appellants which the latter received on 211. 1991 and in that letter only he informed the learned counsel for the appellants that he had fixed 4th to 6th December, 1991, as date for the examination of two witnesses. It appears from the facts stated in one of the counter affidavit on record that when the learned counsel for the appellants wanted to contact the advocate-commissioner on 12. 1991 he learnt that the latter had already left for Singapore. 5.. It is further stated in the counter affidavit as follows: "After receiving the certified copy of the order an Application No.2386 of 1991 on 12. 1991 and the counsel prepared (he grounds of appeal on 12. 1991 for the purpose of lodging the same into the Hon’ble Court.. My counsel received a telegram on 12. 1991 at about 10.30 AM. from the Commissioner at Singapore stating that he will be waiting at Singapore till 8th December, 1991, for cross examination of the witness by my counsel. 1991 for the purpose of lodging the same into the Hon’ble Court.. My counsel received a telegram on 12. 1991 at about 10.30 AM. from the Commissioner at Singapore stating that he will be waiting at Singapore till 8th December, 1991, for cross examination of the witness by my counsel. Immediately my counsel sent a cable to the commissioner stating that I had not received the passport to proceed to Singapore and also stated that I have filed an appeal against the order passed in Application No.2386 of 1991 and requested the Commissioner to adjourn the proceedings at Singapore. My counsel prayed in the Hon’ble Court for granting urgent Lunch Motion to move the appeal on 12. 1991. On 12. 1991 the appeal was posted and stay was granted by the Hon’ble Court in C.M.P.No.16360 of 1991. The appeal could not be moved on 12. 1991 since there was no Division Bench sitting on that date to hear the appeal. Immediately after the stay was granted by the Hon’ble Court I sent a telegram to the commissioner to his Singapore address where he was staying as per his letter dated 211. 1991. I state that the Commissioner had already completed the examination of the witness without giving any opportunity to my counsel to cross examine the witnesses and thereby the examination of witness was only a formality." It appears from the material papers available on record with regard to this appeal that the learned advocate-commissioner sent a cable addressed to the learned counsel for the appellant that he had expected the learned counsel’s arrival in Singapore on 12. 1991 and that he himself would be in Singapore till 12. 1991 and that the learned counsel for the appellants could come to Singapore and cross examine the witnesses. This was replied to as follows: "Your cable unable to proceed to Singapore Eight December, 1991. Party not received passport to accompany me. Filed appeal the appointment of Commissioner-Pray adjournment." It is said that the advocate commissioner’s telegram was received by the learned, counsel for the appellants on 12. 1991 and on the same day a reply telegram was sent. The instant appeal was however posted for admission on 12. 1991. It seems that the appeal was filed before this Court on 12. 1991 and listed for admission on 12. 1991 and on the same day a reply telegram was sent. The instant appeal was however posted for admission on 12. 1991. It seems that the appeal was filed before this Court on 12. 1991 and listed for admission on 12. 1991 on which date it was admitted and this Court in C.M.P.No.16360 of 1991 ordered as follows: "1. That notice do issue to the respondents herein to show cause why this petition should not be complied with; and 2.. That the operation of the order passed in Application No.2386 of 1991 in C.S.No.500 of 1988 dated 310. 1991 on the file of Original Side, High Court, Madras be and hereby is stayed pending further orders on this petition." 6.. The Advocate-Commissioner has submitted a report on 112. 1991 and stated as follows: "I got the warrant and order copy only on 211. 1991, on mentioning in the presence of both the advocates His Lordship Mr.Justice Lakshmanan extended the period till 312. 1991 by his order dated 211. 1991. On 26th November, 1 made a request to the Assistant Registrar, Original Side, High Court, Madras to handover certain documents in the suit which I look possession for use and return after the commission work is completed. On the day i.e. 211. 1991, I gave intimation to the counsel for plaintiffs as well as defendants informing them that the witnesses will be examined for 4th December, 1991 at 9.00 a.m. to 6th December, 1991 requesting their co-operation. At the instance of the counsel for defendant, I postponed the commencement from 4th to 5th December, 1991. I left Madras on 4th December and reached Singapore on the 5th day of December. I was present at the press No.25, Peach Garden, Singapore 1543 at 9.00 a.m. the place where the examination was to be conducted. The plaintiffs’ advocate Mr.S.A.Rajan and Mr.N.D.Sathak Ansari, plain-tiff’s (1st husband also reached there to take part in the proceeding, counsel for defendants 1 and 2 Mr.K.Venkataraman did not turn up, nor his clients. I caused a telegram to be given to Mr.K.Venkataraman, counsel for defendants 1 and 2 on 5th December, 1991 informing him of my arrival at Singapore and asking him to go over to Singapore to send interrogation so that I can put them to the witnesses and get the answers. I have not got any reply. I caused a telegram to be given to Mr.K.Venkataraman, counsel for defendants 1 and 2 on 5th December, 1991 informing him of my arrival at Singapore and asking him to go over to Singapore to send interrogation so that I can put them to the witnesses and get the answers. I have not got any reply. After waiting for an hour I started the commission works. Administration of Oath was done by me and then I started recording evidence of the 3rd defendant Mrs.B.Saraswathi. The recording was continued on 6th also. After completion of her evidence in chief, I obtained her Singapore on each page and I signed in the last page. Third defendant’s husband Mr.R.Balasubramaniam was also examined on 6th. After the formalities were over, I recorded his evidence in my hand-writing and I signed in the last page after obtaining his signature on each page." 7. An innocent act of a party in moving the court in a given situation to appoint an advocate-commissioner to record deposition of a witness or even a party can never be viewed as an act interfering with the due course of justice and if the discretion is exercised by the Court of Law, to order for examination of a witness on commission, possibly no exception can be taken. The Code of Civil Procedure has envisaged a scheme under O.16 for summoning of a witness and the attendance of such witness/The court may depart from the procedure prescribed therein under the situation as-noticed in Rule 16, O.16, C.P.C. Rule 19 thereof further proceeds to state that- "No one shall be ordered to attend in person to give evidence unless he resides - (a) Within the local limits of the court’s ordinary original jurisdiction; or, (b) without such limits but at a place less that 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 9 (5 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." Coming however as to parties own evidence in a proceeding, Rules 20 and 21 of O.16, arc relevant; They read as follows: "20.Consequence of refusal of party to give evidence when called on by court: Where any parly to a suit present in court refuses, without lawful excuse, when required by the court, to give evidence or to produce any document then and there in his possession or power the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. 21. Rule as to witnesses to apply to parries summoned: Where any party to a suit is required to give evidence or to produce a document the provisions as to witness shall apply to him so far as they are applicable." 21.. Rules in case of parties appearing as witnesses: (Madras Amendment). When a party to a suit is required by any other party thereto to give evidence or to produce document, the provisions as to witnesses shall apply to him as applicable. Rules in case of parties appearing as witnesses: (Madras Amendment). When a party to a suit is required by any other party thereto to give evidence or to produce document, the provisions as to witnesses shall apply to him as applicable. 21 .(2) When a party to a suit gives evidence on his own behalf the court may, in its discretion permit him to include as costs in the suit a sum of money equal to the amount-payable for travelling and other expenses to other witnesses in the case of similar standing." From the above we shall presently notice that it enabled the plaintiffs/respondents to suggest that the 3rd defendant/respondent although a party, is summoned as a witness of another parly and those rules that are applied to witnesses have to be applied and not the rules which are applied to a party to a suit when such a parly decides or declines to depose as a witness, O.26 of the Code of Civil Procedure deals with cases in which court may issue commission to examine witness; O.26, Rule 1, C.P.C. reads as follows: "Any court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the court or who is from sickness of infirmity unable to attend it; Provided that a commission for examination on interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do. Explanation: The court may for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person without calling the medical practitioner as a witness. “We are not concerned with the question whether the court has got power to issue a commission for the examination of a person, who resides within the local limits and the jurisdiction of the court, Rule 4 of O.26, C.P.C., however enumerates persons for whose examination, commission may issue: Rule 4 of O.26, C.P.C. reads as follows: ”4. “We are not concerned with the question whether the court has got power to issue a commission for the examination of a person, who resides within the local limits and the jurisdiction of the court, Rule 4 of O.26, C.P.C., however enumerates persons for whose examination, commission may issue: Rule 4 of O.26, C.P.C. reads as follows: ”4. Persons for whose examination commission may issue: (1) Any court may in any suit issue a commission for the examination or interrogatories or otherwise of-(a) any person resident beyond the local limits 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 O.16, a person cannot be ordered to attend a court in person, a commission shall be issue for his examination if his evidence is considered necessary in the interest 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. (2) Such commission may be issued to any court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the court issuing the Commission may appoint. (3) The court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate court.“ The two orders noticed by us, as above, fall under incidental proceedings as indicated in Part 111 of the Code of Civil Procedure, particularly Sec.75. Sec.75, C.P.C. states that subject to such conditions and limitations as may be prescribed the court may issue a commission to examine any person; to make a local investigation; to examine or adjust accounts or to make a partition; to hold a scientific, technical or expert investigation..... This power, as appearing front the language in Sec.75, C.P.C. and the various rules in O.16 and O.26 of the Code, is discretionary. In Filmstan Private Ltd., Bombay v. Bhagwandas Santprakash, A.I.R. 1971 S.C. 61, the Supreme Court has observed as follows: ”Admittedly the witnesses sought to be examined at Kabul are relevant witnesses. This power, as appearing front the language in Sec.75, C.P.C. and the various rules in O.16 and O.26 of the Code, is discretionary. In Filmstan Private Ltd., Bombay v. Bhagwandas Santprakash, A.I.R. 1971 S.C. 61, the Supreme Court has observed as follows: ”Admittedly the witnesses sought to be examined at Kabul are relevant witnesses. All of them are living outside the jurisdiction of the court and hence they are not amenable to the process of the court. It was said on behalf of the appellant that one of the witnesses sought to be examined is an agent of the 1st defendant and therefore that defendant could have produced him in court for examination. As regards the other witnesses, it was said that the facts that they were expected to depose could have been established by other evidence. We have no doubt that these facts must have been considered by the learned single Judge. The order under appeal is essentially a discretionary order. We do not think that a case is made out for interfering with the discretion of the learned trial Judge. The fact that the witnesses examined on commission cannot be effectively cross-examined or their examination will entail heavy costs are not sufficient circumstances to interfere with the discretion of the learned trial Judge.“ The discretion as envisaged in this behalf is indubitably a judicial discretion. The exercise of judicial discretion is always guided by well settled principles of law. The learned trial judge has taken notice of such principles and has rightly stated as noticed by us earlier that the court has to exercise its discretion judiciously and” there is a difference between party witness and third party witness although in the Code of Civil Procedure, there is no distinction drawn as regards this point, between the plaintiff, the defendant and the witness yet as a rule of prudence this rule has been applied. Normally a party would not be allowed to be examined on commission. It would not be unusual privilege to exempt the party from attendance in court merely because he was living beyond the limits of jurisdiction and permitting him or her to be examined on commission." We need not labour to locate the precedents in this behalf but it will be useful to refer to a few of the pronouncements of the courts. In M.A.H.Farook v. Kalikirshnaraju, (1974)2 M.L.J. 46 , a learned single Judge of this Court dealt with a case in which the defendant made an application to examine himself on commission before the District Munsif. The District Munsif declined to accept his case that there would be any danger to the person of himself and that of his advocate if they visited Pondicherry in connection with the examination of the petitioner on commission. Nevertheless, he expressed the view that having regard to the status of the petitioner, the respondent’s advocate might not be quite free to cross-examine the petitioner at Pondicherry as well as he could do in the court at Ramanathapuram. Relying upon the decision of this Court in Subramaniam Chettiar, In re., (1954)1 M.L.J.. 449 and A.R.Lakshmana Chettiar v. Vadivelu Ambalam, (1967)1 M.L.J. 252 , the learned District Munsif rejected the argument advanced on behalf of the petitioner that demeanour of the witness is not of much importance. He expressed the view that the petitioner could not claim the exemption under Sec.133 of the C.P.C., except in cases in which he is sued in his official capacity for anything done in discharge of his duties as the Chief Minister of Pondicherry and has observed in his order that the inconvenience and expenses that the respondent would be put to if the petitioner had to be examined on commission at Pondicherry could not be overlooked. The learned single Judge, upon that has said- "The petitioner is the fourth defendant in the suit and as such he could not have chosen the jurisdiction of the lower court. The court should deal with an application of a defendant to examine himself as a witness on commission as distinguished from an application by the plaintiff vide Viswantha Chetty v. Somasundaram Chetty alias Nagappa Cherry, 46M.L.J. 131. The defendant’s application should be treated differently and not like an application by the plaintiff who could choose the forum for the action unlike the defendant. The defendant’s application should be treated differently and not like an application by the plaintiff who could choose the forum for the action unlike the defendant. O.26, Rule 4(1)(a) says; Any court may in any suit issue a commission for the examination of any person resident beyond the local limits of its jurisdiction." Panchapakesa Ayyar, J. in Subramaniam Chettiar, In re., (1954)1 M.L.J. 449 , repelled the contention that a commission should not have been issued to examine a party and a defendant and has observed that a commission can be issued under the Code of Civil Procedure for the examination of "any person" including a defendant. Therefore, the petitioner could claim, under the provisions of O.26, Rule 4(1)(a) to be examined on commission having regard to the distance. Dealing with the contention that it was necessary to examine the person in court so that the court might observe the demeanour, Panchapakesa Ayyar, J. has observed in that decision. I cannot agree that this would exclude the jurisdiction of the court for issuing the commission. In all cases where a commission is issued the court cannot observe the demeanour of a witness. The value of demeanour" has been too much emphasized; demeanour is one of those subtle things which are important only when the evidence is evenly balanced. It also gives no opportunity for either side to cross examine the Judge who observes that the demeanour of the witness and acts on it. So it is one of those medieval reliefs, which, though they have some value, are not so important as to take away the rights under the C.P.C., to issue a commission in deserving cases like this." Even in Viswantha Chetty v. Somasundaram Chetty alias Nagappa Chetty, 46 M.L.J. 131, referred to above, where the defendant had been a resident of Rangoon with his family for many years, it has been observed by Krishnan, J. that the defendant should have been allowed to be examined on commission at Rangoon and that the watching of his demeanour which the lower court had referred to in support of its order was not a sufficiently strong ground for dragging the defendant all the way from Rangoon to Ramnad. Therefore, the fact that the petitioner is a defendant and that the court will not have the opportunity to observe his demeanour if he is examined on commission, is not a sufficient reason for disallowing the petitioner’s application for examination on commission.“ In Amino Bivi v. K.M.Raja Mohammed’, 91 L.W. 629, Nainar Sundaram, J. had the occasion to examine the case of a witness, who was ordered to be examined on commission on behalf of the plaintiff. In the said decision, it has been observed as follows: ”.....He is not only outside the jurisdiction of the court below, but he is at a place not within India and hence, the provisions of 0.26, Rule 5, C.P.C. are attracted. It is true that the order, subject-matter of this revision, is essentially a discretionary order. But the court has to exercise its discretion judicially as to granting or not granting a commission and this Court would be very unwilling to interfere with the exercise of that discretion (sic). If this Court saw that the discretion has been wrongly exercised, if it saw that the case in all its bearings was not laid before the court below; if it saw that the court below misapprehended an important part of the case, this could would interfere. The question is whether the facts of the present case come within the above dictum.“ This is in so far as the interference in exercise of discretion by the trial court is concerned. On the principles that the courts must follow with regard to issue of commissions, it is further observed in the said decision as follows: ”Certain principles have been laid down by courts with regard to issue of commission to examine witnesses. There is a difference between a party witness and a third parly witness. Although in the C.P.C, there is no (sic.) distinction drawn as regards this point, between the plaintiff, the defendant and (sic.) the witness, yet as a rule of prudence this rule has been applied. Normally, a party would not be allowed to be examined on commission. In Lakshmana Chettiar v. Vadivelu Ambalam, 80 L.W. 148, Ananthanarayanan, C.J. observed that it would be an unusual privilege to except the party from attendance in court merely because he was living beyond the limits of jurisdiction and permitting him to be examined on commission. Normally, a party would not be allowed to be examined on commission. In Lakshmana Chettiar v. Vadivelu Ambalam, 80 L.W. 148, Ananthanarayanan, C.J. observed that it would be an unusual privilege to except the party from attendance in court merely because he was living beyond the limits of jurisdiction and permitting him to be examined on commission. It would be relevant in the context to extract (sic.) the observations of Jagadeesan, J. in Ramakrishna Julvani v. Hard-castle and Company, (1962)2M.L..I. 490.A.I.R. 1963 Mad. 100, which runs as follows: “The witness who is a third parly to the action cannot be compelled to attend court to give evidence if he is a resident at a place beyond 200 miles from the court house; a party to a suit or proceeding has no such unqualified right. The plaintiff having filed the suit in a forum of his choice or in a forum where the suit had necessarily to be instituted, cannot, except in the circumstances of bodily infirmity or other disabling factors, avoid giving evidence in court. A defendant however is in a slightly better position. 11 he is a resident in a far off place, quite a long way from the jurisdiction of the court he can pray for the issue of a commission to examine him as a witness... The general is, and this should not be lost sight of or blurred that the evidence of a witness in an action, be he or she a party or not, should be given in public court and tested by cross-examination. Inability to attend court on grounds of sickness, or infirmity or detriment to the public-service, would justify the issue of a commission. The court has got a discretion to relax the rule of attendance in court where the person sought to be examined as witness resides beyond the local limits of the jurisdiction of the court. This discretion may be exercised even if the person happens to be no other than the defendant (See: Subramaniam Chettiar, In re.. (1954)1 M.L..1. 449. There can of course be no rule of law demarcating the boundaries and the area of the discretion to be exercised in these matters. This discretion may be exercised even if the person happens to be no other than the defendant (See: Subramaniam Chettiar, In re.. (1954)1 M.L..1. 449. There can of course be no rule of law demarcating the boundaries and the area of the discretion to be exercised in these matters. What can however be stated is that the court of nisi prins must act judicially having regard to all the circumstances of the case, the desirability of the physical presence of the witness in court to enable it to observe his or her demeanour and not the unusual fact that convenience and economy of expenses for the applicant may involve his opponent in great inconvenience and consideration expense.” The principles as stated in the judgment of this Court in Ramakrishna Kulveni Rai v. Hardcastle and Company, (1962)2 M.L.J. 490 and extracted in the judgment of this Court in Amina Beevi v. Raja Mohammed, 91 L.W. 629, as referred to supra, have stood the test of time although there are various principles of law that are all laid on the fact of a particular case, by the courts in India, in substance, there has never been a departure to the said rule. 8.The Rule under O.16of Rule 19, C.P.C., which is applied to a witness is also applicable to a party or parties in a suit or a proceeding. Whenever courts have found that the evidence of a particular witness is material for the determination of a question of fact and his attendance in court cannot be enforced because of the restriction imposed by the provisions of 0.16, Rule 19, C.P.C., the courts have invariably ordered for examination of such a witness on commission. There is a proviso added to Rule 19 of O.16 which empowers the court to direct any person to attend the court as a witness even though such a witness resides beyond the local limits of the court, provided the transport by air is available between the places, that is to say the place where the court house is situate and the place where the witness resides and the witness is paid a fare by air. The object of the Proviso to Rule 19 of O.16 is that if a witness is residing at a place which is connected with the place of court house by air, the court may, instead of issuing a commission, direct in appropriate cases that summons be issued for attendance of the witness in person on his being paid fare by air. However, such an order cannot be passed mechanically in each and every case and before resorting to this provision, the court must make sure that the applicant is affluent enough to afford payment of fare by air otherwise it may result in undue hardship and even miscarriage of justice in many a case. 9.. We are benefited by the judgment of the Delhi High Court in Mrs.Sunita Jagmohan Verma v. Jagmohan Verma, A.I.R. 1985 Delhi 1, in which beginning from the case of Jagannath Sastry v. Sarathambal Animal, A.I.R. 1923 Mad. 321, and upto the judgment delivered by the Andhra Pradesh High Court in Orugunati Rdnganayakamma v. Madhuri Lakshminarasamma,A.I.R. 1979 A.P. 8, are looked into and the principles stated in Jagannath Sastry v. Sarathambal Animal, A.I.R. 1923 Mad. 321, reiterated to the following effect: “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 O.16,Rule 19(b), C.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 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.” “The plea that observing the demeanour of witness by the judge is not a strong or sufficient ground for refusing issue of commission for examination of a defendant residing beyond the local limits of the jurisdiction of the court cannot be accepted. Issue of commission being a matter of discretion each case has to be judged on its particular facts and ends of justice must undoubtedly be a paramount consideration.” The Delhi High Court has further recorded its reasoning to the effect that a party has a statutory right to an order to have the evidence on commission and on such an application, as pointed out supra, the court has to consider not only the claim of the parly who is desirous of taking a commission, but the rights of opposite party is being deprived of in cross-examining the witness before the judge, who has to determine the suit, and that in the case of an unreliable witness it is a very valuable privilege. .10. Thus, we know the limitations under which the court has to exercised its judicial discretion, while ordering examination of a witness on commission. When we advert to the facts of this case, we cannot less sight of one glaring thing here. One of the witnesses sought to be examined on behalf of the plaintiffs is the third defendant and the other is her husband. Both are said to have been living in Singapore and both are said to be unwell and thus unable to undertake a journey from Singapore to Madras. This third defendant is the vendor of the property, of which, the plaintiffs/respondents are the vendee. The 3rd defendant has entered appearance in the suit and has filed a written statement supporting the case of the plaintiffs. She, the 3rd defendant, thus is not a plaintiff in the name but stands for and by the plaintiffs in the suit. The ailments which are attributed to the 3rd defendant and her husband are the 3rd defendant is suffering from arthiritis and her husband is suffering from acute blood pressure, as described in the affidavit filed in support of the application, for appointment of a commissioner, before the trial court. This the plaintiffs claim to have learnt from the (the 3rd defendant and her husband), who, it is said, talked to some one on their side on telephone (The deponent of the affidavit is the 2nd plaintiff, who has claimed that he had spoken on telephone). This the plaintiffs claim to have learnt from the (the 3rd defendant and her husband), who, it is said, talked to some one on their side on telephone (The deponent of the affidavit is the 2nd plaintiff, who has claimed that he had spoken on telephone). An affidavit on the original side of this Court in a suit is to conform to the requirements of O.19, C.P.C. The matters to which affidavit has to confine are stated in Rule 3 of O.19, C.P.C. only such facts can be stated therein which the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted provided that the grounds thereof are stated. The advantage of seeing a copy of the affidavit shows that there is nothing to show in that affidavit that the deponent was able of his own to prove or that he believed the information that he received from the so-called witness. There is no evidence of any kind to prove the alleged ailments. .11. It is not disputed and we do not propose to go into the question that the 3rd defendant and her husband are relevant witnesses. It is also not in dispute that they are residing outside the jurisdiction of this Court. Thus, if situations warrant the court can order for their examination as witnesses on commission. The rule, however which has to be applied, to the husband of the 3rd defendant, who is sought to be examined as a witness by the plaintiff, cannot be extended to the 3rd defendant herself. The learned counsel for the respondents/ plaintiffs has said that it is so on record that the 3rd defendant is sought to be examined as a witness by the plaintiffs. While so her character will not change and she would still be the third defendant. Her written statement so far has committed that she stands by the plaintiffs. She (the third defendant), thus, is not a plaintiff in name as we have observed earlier but nonetheless a defendant taking the side of the plaintiffs. While so her character will not change and she would still be the third defendant. Her written statement so far has committed that she stands by the plaintiffs. She (the third defendant), thus, is not a plaintiff in name as we have observed earlier but nonetheless a defendant taking the side of the plaintiffs. As observed above, if the rule or principle is that the court shall ordinarily not accept the request of the plaintiff to examine himself as a witness on commission and the rule is almost the same for the defendant but not as strict as that applied to the plaintiffs, in the instant case the court would have to give a serious consideration as to the prejudice that the defendants in the suit are likely to suffer in case they did not get full and adequate opportunity to cross-examine her (3rd defendant) in court since the other witness is her husband. If he (3rd defendant’s husband) was not able to move about at a particular point of time, can he not be found out now and brought before the court for examination. He is a willing witness and it is said that he is prevented on account of ailment. If the ailment is not genuine, the excuse must be refused. We are only reiterating what this Court has followed all thought. The general rule is, and this should not be lost sight of or blurred, that the evidence of a witness in an action, be he or she a party or not, should be given in public court and tested by cross-examination. Inability to attend court on grounds of sickness, or infirmity or detriment to the public service, would justify the issue of a Commission. The court has got a discretion to relax the rule of attendance in court whether the person sought to be examined as witness resides beyond the local limits of the jurisdiction of the court. This discretion may be exercised even if a person happens to be no other than the defendant. There can, of course, be no rule of law demarcating the boundaries and the areas of the discretion to be exercised in these matters. This discretion may be exercised even if a person happens to be no other than the defendant. There can, of course, be no rule of law demarcating the boundaries and the areas of the discretion to be exercised in these matters. What can, however, be stated is that the court of nisi prats must act judicially having regard to all the circumstances of the case, the desirability of the physical presence of the witness in court to enable it to observe his or her demeanour and the not unusual fact that convenience and economy of expenses for the application may involve his opponent in great inconvenience and considerable expense. 12. The facts we have noticed in this case, have alarmed us a little. It is on record how the advocate commissioner proceeded to Singapore and how without waiting for the arrival of the contesting defendants 1 and 2 and their counsel, he proceeded to examine the witnesses. There is information that he had the advantage of the hospitality of the plaintiff and this is a matter of record. We do not propose to say much about it. He has submitted his report and returned the evidence of defendant No.3 and her husband recorded by him to court. If we do not take notice of the prejudice that has occurred to the defendants in this behalf, we shall shut our eyes to injustice. .13. For the reasons as stated above, we are inclined to set aside the impugned order. Accordingly we set aside the impugned order. The application for appointment of an advocate-commissioner for examining the 3rd defendant and her husband as witnesses on behalf of the plaintiffs shall be considered in accordance with law. The report of the Advocate-Commissioner, submitted during the period of the pendency of this appeal, shall be treated as non-est. 14. Before parting with the judgment, we would like to observe that in our country, in particular, there is a need to be always aware of the economic disparity between the parties and the uneven match that is brought before the courts, particularly by wealthy against poor and strong against weak. While it may not appear difficult for a millionaire or multi national to travel as and when he likes from one place in India to any other distination in the world, for another it may be impossible. While it may not appear difficult for a millionaire or multi national to travel as and when he likes from one place in India to any other distination in the world, for another it may be impossible. We are aware of the provisions of Rule 15 of O.26, C.P.C. which says before issuing any commission under this order, the court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed paid into court by the party at whose instance or for whose benefit the commission is issued. According to Madras Amendment as per Rule 15(1) of O.26, C.P.C, before executing and returning any commissions issued by foreign courts under the provisions of Sec.78, the court of the Commissioner, required to execute the commission may levy such fees as the High Court may from time to time prescribe in this behalf in addition to the fees prescribed for the issue of summons to witnesses and for expenses of such witnesses under Rule 2 of O.16. 15. We are also aware that some courts have taken a view that while making order for the cost of commission the courts cannot invoke its inherent jurisdiction to order for the cost of the parties contesting the case. But we do not find any inhibition upon the jurisdiction of the court under any provisions of the Code of Civil Procedure or any other law that has been brought to our notice that while making an order for examination of a witness on commission, the court cannot take into account the position and status of the parties, the uneven match at which they stand and the economic harassment that the party may suffer if the court will not make an order for the cost to be paid by the party asking for the commission. We are making these observations for after instituting a suit or being called upon to answer certain allegations in a suit, a party may decide thus to go abroad to avoid summons on the one hand and on the other to insist that he/she should be examined on commission, and the party not able to manage necessary expenses, thus, will be deprived of a valuable right to cross examine such a person. This, in our opinion, shall be grave injustice. This, in our opinion, shall be grave injustice. On the facts of the instance case, thus we hope and trust that the trial court shall keep this aspect also in mind before making any order, if at all to examine the witness or witnesses on commission, is necessary that, adequate expenses are to be made available to the contesting defendants. 16. For the reasons aforesaid, the appeal is allowed and the impugned orders are set aside. The case is remitted to the trial court for rehearing of the application in accordance with law. In the circumstances of the case, hearing fee is fixed at Rs.3,000.