Judgment :- 1. Official Receiver, Salem representing the General Body of Creditors of the Insolvent C. Kishore Kumar is the revision petitioner in this revision petition. 2. I.P. 36 of 1993 was filed by M/s. Kamal Enterprises by sole proprietor Kamal Kumar Singhi to adjudicate Kishore Kumar as insolvent. In I.A. 53 of 1993, Official Receiver, Salem was appointed on 27.1.1994 and by order dated 3.2.1994 declared him as insolvent and all his properties vested in Official Receiver. It is seen that Kishore Kumar had executed a sale deed in favour of second respondent herein on 15.10.1993 pursuant to decree in O.S. 797 of 1992 and first respondent also obtained decree. Though the suit is instituted earlier, decree is subsequent to initiation of insolvency proceedings. It is also seen that he has also entered into an agreement for sale with third respondent. 3. Official Receiver moved an application in I.A. 62 of 1994 to set aside the decree in O.S. 441 of 1992; to set aside the sale deed dated 15.10.1993 in favour of second respondent and also to negative the claim of third respondent under sale agreement dated 21.1.1991 and declare that the above said decree and sale are not binding on the General Body of Creditors. In that application, Official Receiver moved an application as I.A. 59 of 1998 stating that the evidence of Kamal Singhi and his wife Smt. Resham Singhi is to be taken and they are permanent residents of New Delhi. It is also averred in the affidavit that both of them are sick and they also cannot travel to Salem to depose before the Court. The Official Receiver further said that they are to be examined as witnesses in this case and they reside beyond 2000 Kms. and therefore Commission is to be issued for examining the witnesses. 4. The same is seriously opposed by respondents and by the impugned Order, lower Court held that Sri. Kamal Kumar Singhi was the person who initiated Insolvency proceedings and therefore he is in the position similar to that of plaintiff and consequently he cannot be examined by issuing Commission. In regard to his wife also, similar view was taken. Lower Court further held that the medical certificate only shows that they cannot travel for a month and that period is already over and nothing prevents those persons to appear before Court and get them examined. In regard to his wife also, similar view was taken. Lower Court further held that the medical certificate only shows that they cannot travel for a month and that period is already over and nothing prevents those persons to appear before Court and get them examined. The petition was dismissed. It is against the said decision this revision petition is filed. 5. Notice of motion was ordered and respondents also entered appearance. 6. After hearing counsel on both sides, I think that the order of the lower court requires interference. 7. It is found by lower Court that the position of Kamal Kumar Singhi and his wife is similar to that of plaintiff. But lower Court is also very clear that they cannot be equated with the plaintiff. 8. Law does not recognise “equivalents to the plaintiff or “equivalents to defendant” and the same is declared by this Court in the decision reported in AIR 1949 Madras 468 = 62 L.W. 99 (Borrayya v. Ramakoti Sastri) in para 3 of the judgment, it is held thus. “The third contention was that one of the witnesses sought to be examined on Commission was the vendor of the properties to the plaintiff and stood in no better footing than the plaintiff, and should not have been allowed to be examined on commission. I cannot agree. The law does not recognised “equivalents to the plaintiff and “equivalents to the defendants” and the rules must be strictly construed. Any witness, however important, is entitled to ask to be examined on commission if he lives outside its jurisdiction in a place more than 200 miles from the Court house, as here, and the Court in which the application for Commission is filed sees no fraud or mala fides in such an application.” 9. From the counter affidavit, it is clear that it is Official Receiver, who is in the position of plaintiff and he wanted to examine two of the creditors as witnesses. Once it is held that they cannot be treated as plaintiffs or as petitioners, in view of the decision reported in (1967) II M.L.J. 369 = 80 L.W. 377 ( Nataraja Konar v. Poovalingam Pillai), it is to be held that petitioner is entitled to have the Commissioner appointed as of right. Once it is held that they cannot be treated as plaintiffs or as petitioners, in view of the decision reported in (1967) II M.L.J. 369 = 80 L.W. 377 ( Nataraja Konar v. Poovalingam Pillai), it is to be held that petitioner is entitled to have the Commissioner appointed as of right. After extracting relevant rule under Order 26, Code of Civil Procedure, Justice Ramaprasada Rao (as his Lordship then was) held thus, “The language employed in both the rules are mostly similar. Prima facie, the Court appears to have a discretion in the matter of the issue of commission, since the word ‘may’ appears in both the rules. It is one of the canons of interpretation that in certain compelling circumstances ‘may’ can be interpreted to mean ‘shall’ in Jagannatha Sastry v. Sarathambal Ammal, Wallace, J., observed that the word ‘may’ in Order 26, Rules 1 and 4 means ‘Is given authority to’, and it was held that the Court in fact has no discretion to reduce a commission for examination of witnesses in cases falling under the above rules. Whatever may be said against the issue of commission for the examination of a party to a suit on commission, to which aspect I will advert later, it appears to be well-settled now that the matter is not one of the discretion, but it is in the nature of a statutory right to the litigant: In Sitama v. Subraya, a Bench of this Court took the view that such a commission ought to issue as of right irrespective of the anticipated benefit or otherwise to the applicant by such issue. Wallace, J., after referring to the above decision, laid down as it were a formula in Jaganna Sastry v. Sarathambal Ammal, which reads as under (at page 205): “The balance of authority is in favour of the view that (I) ordinarily, in the case of a witnesses not under the control of the party asking for the commission, who resides beyond the limit fixed under Order 16, rule 19(b), Civil Procedure Code, 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 (2) 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 above formula is quoted with approval of Subba Rao, J. (as he then was) in Subbaraya Padayachi v. Kozhandaivel Udayar. In fact, the learned Judge would not follow the observations in Palaniappa Chettiar v. Narayana Chettiar, that the matter of issue of a commission is one of the discretion for the Court. The learned Judge held that a party to a suit has a right to ask for the issue of a Commission to examine a witness beyond the prescribed distance. Vaidyalingam, J. in Sathi Amma v. United Commerical Bank, quoting with approval the above cited decisions, held that in the case of a witness residing beyond the limits fixed under Order 16, Rule 19(b), a commission should issue as a matter of right unless the Court is satisfied that a party is guilty of delay or is merely abusing its authority to issue process. It is not for the Court to decide whether the party will be benefited thereby or not; it is a matter entirely for the party. In the case under consideration, it is not suggested that the petitioner is guilty of any laches or is in any way motivated in applying for the examination of the three witnesses in Burma over whom he has no control. I very respectfully adopt the legal formula set out by Wallace, J., and later approved by Subba Rao, J. (as he then was) in the cases cited above. In fact, our High Court has also held that a defendant residing abroad should also ordinarily be permitted to be examined on commission - see Mohammad Ibrahim v. Allapitchai. I very respectfully adopt the legal formula set out by Wallace, J., and later approved by Subba Rao, J. (as he then was) in the cases cited above. In fact, our High Court has also held that a defendant residing abroad should also ordinarily be permitted to be examined on commission - see Mohammad Ibrahim v. Allapitchai. In the wake of such a catena of decisions of the Division Bench in Sitamma v. Subraya, referred to above, this Civil Revision Petition has to be allowed straightaway. Learned counsel for the respondent however, has drawn my attention to the two decisions referred to by the learned District Munsif in his judgment. Panchapakesa Ayyar, J., in Muhammad Zackria v. Abdul Karin, and Jagadisan, J., in Ramakrishna Kulwant Rai v. Hardcastle & Co., were of the view that issue of a commission for the examination of a party to the suit is a matter for judicial discretion. They rested mainly on the general rule of practice that a party to a suit should subject himself to examination in Court, such that the Court may watch his demenour. In fact, they have put it broadly on public policy. The decisions referred to by me in the earlier portion of my judgment were however not brought to the notice of their Lordships in the two above reported decisions. Further, the case under review is distinguishable, as we are concerned in this case with the issue of a commission for the examination of a witness abroad and not for the examination of a party to the suit. This distinction has to be borne in mind. The learned District Munsif relied on the decisions of Panchapopakesa Ayyar, J., and of Wallace, J., in Jagannatha Sastry v. Sarathambal Ammal. I would therefore respectfully prefer to follow the formula of Wallace J., who, in turn, followed the principle laid down by the Division Bench consisting of Abdul Rahman and Sundaram Ayyar, JJ. in Sitamma v. Subraya.” This extract is taken from The Official Receiver v. Dr. K Chandrasekaran, (2000) 3 LW 129 , at page 132: 10. In fact, in the above decision, learned judge relied on the earlier decision reported in (1923) I.L.R. 46 Madras 574 = 17 L.W. 251 = AIR 1923 Madras 321 (Jagannatha Sastry v. Sarathambal Ammal ) rendered by Justice Walliace wherein it is held thus. K Chandrasekaran, (2000) 3 LW 129 , at page 132: 10. In fact, in the above decision, learned judge relied on the earlier decision reported in (1923) I.L.R. 46 Madras 574 = 17 L.W. 251 = AIR 1923 Madras 321 (Jagannatha Sastry v. Sarathambal Ammal ) rendered by Justice Walliace wherein it is held thus. “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 Order 16, Rule 19(b), Civil Procedure Code, 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. 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. It is clearly the duty of High Court to interfere, even in interlocutory proceedings, rather than permit a trial to go on an illegal course, which must entail unnecessary expenses to the parties and useless waste of time.” 11. In view of the law declared by this Court, I do not think that the order of lower Court is correct. 12. The only other question requires consideration is who should bear the expenses for issue of commission. 13. Learned counsel for petitioner submitted that they will bear the expenses. Why I am referring to the expenses is one of the objections is that they will have to bear heavy expenses for travel to Delhi. Travelling expenses by Train II class A/c. respondents 1, 2 and 3 will be met by petitioner initially. If respondents intends to travel to Delhi, their tickets also will be purchased by petitioner and given to them. The expenses of Commissioner also will be met by petitioner and lower Court is directed to name the Advocate Commissioner and also his remuneration. Court below will direct Commissioner to take evidence of parties within a fixed period before which examination is to be completed and warrant be returned by Commissioner. Under no circumstances, matter should be adjourned and even if one of the parties are absent, Commissioner is directed to complete examination of witnesses. 14. In the result, the impugned order is set aside and the revision petition is allowed as above. No costs, Consequently, C.M.P. No. 13250 of 1999 is closed. ORDER - 24-3-2000:— 1. Under no circumstances, matter should be adjourned and even if one of the parties are absent, Commissioner is directed to complete examination of witnesses. 14. In the result, the impugned order is set aside and the revision petition is allowed as above. No costs, Consequently, C.M.P. No. 13250 of 1999 is closed. ORDER - 24-3-2000:— 1. I have already disposed of this revision as per order dated 8.3.2000. It is being posted for today at the instance of the petitioner. 2. While allowing the C.R.P., I said that the travelling expenses of respondents 1, 2 and 3 will be met by petitioner initially. It is represented by the counsel for the petitioner that in I.A. No. 62 of 1994 itself, the petitioner has given up the claim as against the respondents 1 and 3 and endorsement has been made in the lower Court itself, In view of the said submission, my order, directing the petitioner to pay the expenses will be confined only to 2nd respondent. To that extent, my earlier order stands modified. It is for 2nd respondent to decide whether he should travel to Delhi or his Counsel. Necessary information will be given by the 2nd respondent in that regard before the lower Court at the earliest point of time.