Sahidullah Munshi, J. - This revisional application is directed against Order No.231 dated 21st April, 2015, passed by the learned 4th Judge, City Civil Court at Calcutta in Title Suit No.2437 of 1996. The defendant nos.1(a) and 1(c) are the petitioners before this Court. The original petitioner no.1 being dead, Smt. Pushpa Devi Bangur and Smt. Rakhee Rajgharia have been substituted in place of original petitioner no.1, Gopal Das Bangur (since deceased). The substituted petitioner no.1(a), Smt. Pushpa Devi Bangur, is the widow of Gopal Das Bangur and Smt. Rakhee Rajgharia is the daughter of late Gopal Das Bangur. Petitioner no.2 is the son of the deceased Gopal Das Bangur, and is already on record.
2. The opposite party no.1 filed a suit being Title Suit No.2437 of 1996 in the City Civil Court at Calcutta for ejectment of the original defendant, Purushottam Das Bangur from the suit property. Plaintiff in the suit examined as many as five witnesses and the evidence on behalf of the plaintiff was concluded on 6th August, 2010. Prior to commencement of evidence of the defendants, original defendant died on 3rd December, 2010. The learned Court below fixed 17th December, 2012 for adducing evidence on behalf of the petitioners. On 17th December, 2012 affidavit of evidence of DW 1 Sri Hemant Bangur was filed and further examination-in-chief of DW 1 commenced for exhibiting the documents. On 16th September, 2013 oral evidence of DW 1 was completed and thereafter, oral evidence of DW 2 (Sri Abhay Gandhi) commenced on 30th September, 2013 and the same was concluded on 28th November, 2013. Thereafter, oral evidence of DW 3 (Sri Jugal Kishore Kankani) commenced and was completed on 20th February, 2014. Oral evidence of DW 4 (Sri Srikant Bangur) commenced from 13th March, 2014 and such evidence was concluded on 24th July, 2014. Learned Court below fixed 12th August, 2014 for examination of DW 5.
3. A case has been made out by the petitioner that by reason of certain disputes between two families, i.e., family of Sri L.N. Bangur and the family of the petitioners, the said Sri L.N. Bangur, in breach of the family arrangement, filed the present suit for eviction of the original defendant Purushottam Das Bangur, who was the natural father of Sri L.N. Bangur from the suit property. It has been stated that the plaintiff was a family concern of the joint Bangur family. In pursuance of a family settlement made in the Bangur family, the plaintiff-company was allotted to Sri L.N. Bangur, the natural son of the original defendant Purushottam Das Bangur (since deceased). It is stated by the petitioners that for the purpose of proving the family settlement and/or family arrangement, it is absolutely necessary for the family members of Bangur family to give evidence in the suit. The senior-most family member, Sri Gopal Das Bangur (since deceased), who was suffering at the relevant time from various ailments, was not in a position to give evidence in the suit. In that view of the matter, his son, Sri Hemant Bangur, the petitioner no.2, gave oral evidence at the first instance. Another member of Bangur family, Sri Srikant Bangur also gave oral evidence. According to the defendants/petitioners, it became absolutely necessary for Smt. Pushpa Devi Bangur, substituted as petitioner no.1(a) to this revisional application being the widow of Sri Gopal Das Bangur (since deceased) and the mother of the said Sri Hemant Bangur, to give oral evidence in the suit to prove the family settlement and the family arrangement made in the Bangur family (emphasis supplied by Court).
4. It has been stated that DW 5, Smt. Pushpa Devi Bangur, is the daughter-in-law of Bangur family and that the said old Hindu family is a very conservative and orthodox one. According to the petitioner, DW 5, Smt. Pushpa Devi Bangur, was married to Sri Gopal Das Bangur in the year 1966 when female members of Bangur family used to maintain ''pardah'' system and, as a result whereof, DW 5, Smt. Pushpa Devi Bangur, had to maintain ''pardah'' and never appeared in public. However, with the passage of time, the said ''pardah'' system in Bangur family got gradually relaxed but no female member of the Bangur family has, however, come to any Court for giving oral evidence. Having regard to such constraints to appear in public for the purpose of giving evidence in open Court, the defendants/petitioners filed an application for examination of DW 5 on commission. The said defendants/petitioners also filed an affidavit of evidence of DW 5, Smt. Pushpa Devi Bangur on 9th September, 2014. The application for examination of DW 5 on commission has been made under the provisions of Order 26, Rule 1 of the Code of Civil Procedure and has been annexed to the revisional application marked Annexure - B. From the said application it appears that prayer has been made for examination of DW 5 on commission. It was contended that Smt. Pushpa Devi Bangur, DW 5, was willing to give oral evidence being the wife of the original defendant who was suffering from various ailments and was not in a position to give evidence in the suit. It was contended that oral evidence of DW 5, Smt. Pushpa Devi Bangur, is absolutely necessary for proving the Defence case. In support of the prayer for issuing commission for the examination of DW 5, it has been further contended that female members of Bangur family do not appear in public due to prevailing ''pardah'' system, although, with the passage of time such ''pardah'' system got diluted but no female member of the family ever came out for giving evidence in Court. Therefore, it was contended that Smt. Pushpa Devi Bangur, being a female member of the orthodox and conservative Hindu Bangur family, ought not to be compelled to appear before the Court in person for giving oral evidence and in the interest of justice, learned Court should exempt personal appearance of DW 5 and instead direct DW 5 be examined on commission for recording her oral evidence.
5. An affidavit-in-opposition was filed before the learned Court below on behalf of the plaintiff to the defendants'' application under Order 26, Rule 1 read with Section 151 of the Code of Civil Procedure. In the said affidavit, it has been contended by the plaintiff that Bangur family does not maintain ''pardah'' system and it is also not correct to say that no female members of Bangur family appear in public. It has been contended that no case has been made out by the defendant that Smt. Pushpa Devi Bangur maintains ''pardah'' system for which she cannot appear in Court. The plaintiff contended that it was voluntary decision of Smt. Pushpa Devi Bangur to give evidence for her own interest and she should come to Court to give evidence. It has been added that demeanour of the witness is a very important factor. In order to contradict the plea taken by the defendants that Smt. Pushpa Devi Bangur is a ''pardahnashin'' lady, the plaintiff annexed certain documents to his affidavit-in-opposition. He has relied on a report on corporate governance to show that Smt. P.D. Bangur (Pushpa Devi Bangur) attended last Annual General Meeting of the company where she is a Non-Executive Director and she had attended two such Annual General Meeting. Therefore, it is not correct that she maintains ''pardah'' and does not appear in public. The plaintiff has also drawn the attention of the Court at page 36 of the said report on corporate governance which shows that Smt. Pushpa Devi Bangur is one of the Directors of the company attended Annual General Meeting. It was also shown that she attended board meetings on three occasions. From the composition of the Board of Directors appeared at page 44 of the said report it is evident that apart from members from the Bangur family, names of other persons belonging to other families appear in the category of Directors. At page 46 of the said report under the heading ''relationship amongst Directors'' it has been mentioned that no Director is related to any other Director on the Board in the company except Sri Gopal Das Bangur, Chairman, Smt. Pushpa Devi Bangur, Director and Sri Hemant Bangur, Executive Vice-Chairman, who are related to each other. Photographs have been annexed to show that Smt. Pushpa Devi Bangur has appeared in public and further that she has issued invitation card for a festival concerning ''Holy'' which was scheduled to be held at Calcutta. However, the allegations made in the said affidavit have been controverted by the defendants by filing a rejoinder and contended that she appeared in a family gathering and on an occasion when a road was named after her father-in-law.
6. Contradicting what has been alleged in the affidavit-in-opposition filed by the plaintiff, in the rejoinder the defendants have specifically stated-
"... a) At the Annual General Meeting Smt. Pushpa Devi Bangur did not speak. She sat on the dais and only observed the proceeding at the said meeting.
b) In memory of Late P.D. Bangur, a function for naming was organised to name the inter-section of Link Road at Bangur Nagar at Goregaon, West Mumbai, as P.D. Bangur Chawk. Since the defendant no.1(a) was suffering from various ailments and was not in a position to travel to Mumbai to attend such function, our family decided that Smt. Pushpa Devi Bangur should be present at the site during such naming programme. Accordingly, Smt. Pushpa Devi Bangur and I attended such function on behalf of the family.
c) Smt. Pushpa Devi Bangur is a member of a ladies charitable organization known as Jyotirmoyee Club and also a member of the Women Wing of another club known as Sanghasree. A social organisation by the name of Nagarik Swastha Sangha desired to organise a women dance programme during Holi festival and had approached the said club to participate in the dance programme and this is the reason her name appears on the invitation card of this programme. She also attended such programme as a guest.
d) It is significant that Sri L.N. Bangur is the Chairman of the Board of Directors of the plaintiff company and is fully aware of the custom and tradition of Bangur family but he has not ventured to affirm any affidavit in this regard and as such no reliance should be placed on false and misleading allegations made by the deponent in the paragraph under reference. (the deponent is Alok Kabra, one of the Directors of the plaintiff company, i.e., M.B. Commercial Co. Ltd."
7. On consideration of those fact, the learned Court below passed the impugned order on 21st April, 2015 rejecting the petitioner''s application for issuing commission holding that the petitioner failed to prove that she is a ''pardahnashin'' lady.
8. Mr. Kapur, learned Senior Counsel appearing in support of the revisional application submitted that the learned Court below has committed gross error in law having failed to take into consideration of the provisions of Order 26, Rule 4A of the Code of Civil Procedure which has been recently amended and has been given effect to since 1st July, 2002. According to Mr. Kapur, the learned Court below has also failed to take into consideration of the provisions of Order 18, Rule 19 of the Civil Procedure Code which has also been amended recently and the scope has been enlarged by the amended provisions of the Code for issuing commission for examination of a witness on commission instead of examining the witness in open Court. Mr. Kapur has also submitted that the learned Court below has failed to take into consideration and appreciate that the provisions contained in Order 18, Rule 19 of the Code has got an overriding effect and empower the Court to direct statements of the witness to be recorded on commission notwithstanding anything to the contrary contained in the rules of the Code of Civil Procedure. Therefore, according to Mr. Kapur, the reason as shown by the learned Court below in rejecting the application under Order 26, Rule 1 of the Code is not justified and the same should be set aside. Mr. Kapur submitted that although, the application was titled under Order 26, Rule 1 but in effect and substance, the same has been made within the scope under Rule 4A Order 26 of the Code of Civil Procedure. Therefore, the learned Court below ought to have allowed the petition filed by the defendants/petitioners for recording evidence of DW 5 on commission. In support of his submission Mr. Kapur has relied on the following judgments :-
Elias Joseph Solomon v. Jyotsna Ghoshal reported in AIR 1918 Cal 111.
Goutam Kumar Agrahari v. Stock Holding Corporation of India Ltd. & Ors. reported in (2016) 5 WBLR (Cal) 44.
9. In Elias Joseph Solomon (supra) this Court, on 11th June, 1917, decided an application of the defendant to examine the defendant and her mother on commission. It was the case of the defendant that her mother belonged to a high family and, according to the practices prevailing in the community, a lady of her station in life did not appear in any Court of law and the defendant apprehends that unless the commission issued to examine her it would not be possible to have her evidence recorded. It was contended by the plaintiff that she personally called at the house of some other persons and talked to them to prove that she was not a ''pardahnashin'' lady. On behalf of the plaintiff it was further submitted that as the lady has taken advantage of such privileges as attached to the abandonment of the ''pardah'' system, she was not entitled to claim the privilege of exemption from appearing in the witness box as provided under Section 132 of the Code of Civil Procedure. The defendant, however, admitted that she does appear in public to a considerable extent yet, according to the custom and manners of the class and community to which she belongs, she could not appear to give her evidence in the witness box in Court. In such conspectus of facts the Court held that the lady should not be forced to come into witness box.
10. In the case of Goutam Kumar Agrahari (Supra) a Hon''ble Single Bench of this Court has taken a similar view and held that Rule 4A was inserted by Act 46 of 1999 effective from 1st July, 2002 and it has made a sea change in the law relating to the issuance of commission. It has vested a large amount of discretion in Court while issuing a commission for recording evidence. It may do so in the interest of justice or for expeditious disposal of suit or for any other reason. The Hon''ble Single Bench has also considered the changes made by the Legislature in Order 18, Rule 4 which has also been amended in 1999 and made effective since 1st July, 2002 and provision has been made for cross-examination even by the Commissioner. From such consideration the Hon''ble Single Bench appointed a Commissioner to record the evidence of the plaintiff in that case.
11. Mr. Sarkar, learned Senior Counsel appearing for the opposite parties/plaintiff, has relied upon the following judgments :-
Eagil Trust Co. Ltd. v. Pigott-Brown & Anr. reported in [1985] 3 All ER 119.
Panchkari Mitra v. Panchanan Saha & Ors. reported in AIR 1924 Calcutta 971.
Kumar Purnendu Nath Tagore v. Kalipada Dutt & Ors. reported in AIR 1956 Cal 513.
Jai Singh & Ors. v. Municipal Corporation of Delhi & Anr. reported in (2010) 9 Supreme Court Cases 385.
12. By referring to the said decision in Eagil Trust (supra) Mr. Sarkar has given emphasis on the principle of giving reasons by a Judge in exercise of discretion. According to the said judgment, the exercise of a Judge''s discretion may be attacked if it is clearly, wholly and wrongly exercised, the Court of appeal will not use this as a means of substituting its own discretion for that of the Judge. However, in the said judgment referred to by Mr. Sarkar, the learned Judge held that there were no grounds on which the discretion can be successfully challenged in the Court of appeal and appeal was dismissed.
13. In the case of Panchkari Mitra (supra) the question arose in the said decision whether it is or is not necessary for the purpose of justice that the ordinary mode in which evidence is to be taken should be departed from. In that case, the petitioner was the plaintiff in a suit for specific performance of contract. The petitioner applied for summons against the opposite parties in order to examine them as witnesses on his behalf. The commission prayed for on the ground that the witness was not fit to come to Court and filed medical certificates. In the medical certificate it was mentioned that the witness would not be able to undertake any journey within two months. In considering the scope of the provision of Order 26, Rule 1 Court held, if sickness or infirmity is alleged, the character and gravity of that sickness or infirmity have got to be assessed, and the risk consequent upon the refusal to issue a commission will have to be taken into consideration. Court held further that if the plaintiff insists on the attendance by his witness in Court and the witness applied for their examination on commission, the Court undoubtedly will have to take into consideration the grounds upon which the commission is applied for. The exigencies mentioned in the said case could not satisfy the Court for grant of a commission and the order of the learned Munsiff was set aside in revision.
14. In the case of Kumar Purnendu Nath Tagore (supra), the petitioner was a complainant and the opposite parties were accused in a criminal case arising out of Section 500/109 of the Indian Penal Code. One of the lady witnesses filed an application praying that her heart was very weak and that she would not be able to attend the Magistrate''s Court which was on the first floor and she might be examined on commission. The Magistrate refused the prayer but ordered that he would examine her in the ground floor room. She filed another application subsequently praying that she might be examined on commission on the ground that she is a Hindu Brahmin lady and also she is ''pardahnashin'' unaccustomed to appear in public place like a Court and it would cause her great hardship and embarrassment to do so and further that she was not keeping good health for quite some time. However, the Hon''ble Apex Court held that the order passed by the learned Magistrate to record evidence on commission was in abuse of Court''s process and the same cannot be allowed. The order of the learned Magistrate was set aside on the one hand but the Hon''ble Apex Court, in exercise of its inherent jurisdiction, directed that examination of the lady may be made on commission on a different ground.
15. In the case of Jai Singh & Ors. (supra) the Hon''ble Apex Court held that High Court, under Article 227 of the Constitution of India, has the jurisdiction to ensure that all subordinate Courts as well as statutory or quasi-judicial Tribunals exercise the powers vested in them within the bounds of their authority. The High Court has the power and jurisdiction to ensure that the act is in accordance with the well established principle of law. In the said judgment, however, the Hon''ble Supreme Court held that the jurisdiction under Article 227, in some ways is wider than the power and jurisdiction under Article 226 of the Constitution of India.
16. By citing the first decision in Eagil Trust (supra) Mr. Sarkar pointed out that Courts should be cautious to interfere with the exercise of jurisdiction and it should give proper reasons if the discretion is interfered with. It goes without saying that a Court, if wishes to interfere with an order, it will give sufficient reasons for such interference.
17. By the decision of Panchkari Mitra (supra) Mr. Sarkar tried to emphasize that provisions of Order 26, Rule 1 cannot be invoked in the present case and ordinary course for cross-examination of a witness should be made in open Court. He submitted that the revision petition, arising out of Order 26, Rule 1 , was dismissed in revision under Section 115 of the Code of Civil Procedure. However, the said case is on different footing and the grounds on which the petition was filed were not considered to be appropriate and, therefore, the revisional application was allowed and the impugned order was set aside.
18. Referring to the decision in Kumar Purnendu Nath Tagore (supra) Mr. Sarkar has pointed out that issuance of commission by the Magistrate was deprecated by the Hon''ble Apex Court, however, the invocation of the power by the Court was under Section 503 of the Code of Criminal Procedure and that is why the Court, although, set aside the order of the learned Magistrate but in the facts and circumstances of the case, in exercise of its inherent jurisdiction, ultimately, allowed commission of a lady.
19. Lastly, submissions have been made by Mr. Sarkar referring to the case of Jai Singh & Ors. (supra) that exercise of jurisdiction under Article 227 of the Constitution of India should be sparingly made and such jurisdiction should be exercised only in rare cases.
20. Looking into the facts and circumstances appearing from the total pleading of the parties it does not appear to this Court that the order impugned cannot be challenged in a revisional application before this Court. If the order impugned is not appealable under the Code of Civil Procedure, the same may be challenged in a revision under Article 227 of the Constitution of India if it is found that a Court has failed to exercise a jurisdiction vested in it under the law then the revisional Court can correct the error and direct the Court to exercise jurisdiction in proper form and manner.
21. In the instant case, the petitioner has made out a case that because the family which she belongs to, is an orthodox conservative Hindu family and it does not permit a daughter-in-law of that family to appear in public, particularly when no female member of a family has ever appeared in Court, the learned Court below ought to have considered such pleading in its proper perspective. Simply relying upon the affidavit-in-opposition where an averment has been made saying that the petitioner was found in some social gathering but fact remains that no assertion has been made that she is not a ''pardahnashin'' lady or that she does not maintain ''pardah'' or that the family is not an orthodox Hindu family or that she appeared in Court earlier or that she appears in public like a modern lady. In my view, the learned Court has failed to exercise a jurisdiction as provided under Order 26, Rule 1 and Rule 4A of the Code of Civil Procedure read with Section 132 of the Code of Civil Procedure.
22. Mr. Sarkar, learned Senior Counsel, has submitted that demeanour of the witness is an important factor which can only be noted at the time of cross-examination of a witness in open Court.
23. The position as was prevailing prior to amendment of Order 26 in 1999 whereby Rule 4A has been introduced with effect from 1st July, 2002 and there is a change in law.
24. The substantive provision contained in Section 75 of the Code of Civil Procedure mentions the type of commission a Court can issue.
Those are -
(a) To examine any person;
(b) To make a local investigation;
(c) To examine or adjust accounts;
(d) To make a partition;
(e) To hold a scientific, technical or expert investigation;
(f) To conduct sale of property which is subject to speedy and natural decay and which is in the custody of Court pending the determination of the suit;
(g) To perform any ministerial act.
25. The provision of Section 75 to issue commission is subject to conditions and limitation as have been prescribed under the rule, namely, Order 26. The normal rule is that a commission should not be issued for examination of a witness who can be ordered to attend in person to give evidence in the Court unless there are special reasons.
26. In the present case, the special reasons shown by the lady DW 5 appears to be a genuine cause for her non-appearance particularly when total denial is not available on record by the plaintiff that she does not belong to an orthodox conservative Hindu family and that no restrictions are there in that family from which daughter-in-laws are permitted to come to Court or to appear in public.
27. Parties before this Court have not referred to a decision in the case of Kissinlal Kankaria v. Purshottamdas Halwasiya & Anr. reported in AIR (29) 1942 Calcutta 143. In the said decision question arose whether defendant, as she prayed, might be examined on commission in view of the fact that she was a ''pardahnashin'' lady. Petitioner based her application on the provisions of Section 132 of the Code of Civil Procedure and prayed for issuance of commission under the provisions of Order 26, Rule 1 . On behalf of the opposite party it was urged that Order 26, Rule 1 of the Code merely confers a discretion on the Court as regards the issue of a commission and that such discretion should not be exercised in view of the fact that the applicant did not observe strict ''pardah'' that she often used to go out in public and even attend sports. In her affidavit-in-reply the petitioner stated that it was not correct to say that she did not observe ''pardah'' or that she used to go out in public. Further, she maintained that when it is necessary for her to go to Court premises for the purpose of signing documents and transacting similar business, she did not leave her private car. On the affidavits on record the Court held that the petitioner was, in fact, a ''pardahnashin'' lady and the only question which arose for consideration was whether, in those circumstances, she should be regarded as exempted from attendance in Court and should be examined on commission. Having considered the pleadings this Court allowed the application and directed appointment of Commissioner for the examination of the defendant.
28. Order 26 deals with commission issued by Courts. Commissions are of different kinds. Rule 1 provides for the issue of a commission for the examination of witness on interrogatories or otherwise. An order for examination of a witness on interrogatories is sometimes issued when the examination of such witness should really be comprehensive. The rule is being amended to provide that examination of interrogatories should be ordered only in special cases. It is also being provided that for providing the sickness or infirmity of witness a certificate signed by a qualified registered medical practitioner should be accepted. This has been provided for keeping in mind that exigency of situation may arise and, therefore, without calling for the doctor in the witness box in a special case, if it so deserves, the Court may pass an order for recording evidence on commission.
29. The general rule is, and this should not be lost sight of, that the evidence of a witness should be given in public Court and tested by cross-examination. The Court has got a discretion to relax the rule only in the circumstances specified in the said rules under Order 26. Such rules ought not to be relaxed or nullified because the witness is a man of rank or is a man of social status and that it will be derogatory to him or her to appear personally in Court. The case here is different. Here the defendant has not prayed for commission not on the ground of rank or social status but for her genuine inability to appear before the Court.
30. The issue of commission is a matter of judicial discretion. The Court, before allowing a prayer for issuing of commission to examine a witness, must consider whether such witness was vital and important.
31. The word ''may'' in Rr. 1 and 4 means that Court has ''discretion'' to issue commission and not that it is ''duty-bound'' to issue it whenever asked for.
32. Section 132 of the Code recognises the right of ''pardahnashin'' ladies who, according to their custom, can claim the privilege of being examined on commission. The fact that she had appeared on a former occasion in public or in Court or that she does not observe ''pardah'' or the ''pardah'' system has been relaxed has to be considered taking note of a particular facts and circumstances of a case pleaded by the party claiming exemption and seeking issue of commission. The Court is bound to take note of the available evidence on record to examine the veracity of the statement made by the party seeking exemption under Section 132 of the Code of Civil Procedure. If, after taking such note of the facts pleaded by the parties and taking note of the materials on record, the Court''s conscience is not satisfied that the lady is a ''pardahnashin'' lady, the Court has every right to refuse relief under Order 26, Rule 1 or Rule 4A of the Code of Civil Procedure. The party seeking issue of commission must satisfy the Court that this is such an exceptional case where Court has no other option but to issue a commission considering the special circumstances.
33. In the present case, the defendant has pleaded that she is a ''pardahnashin'' lady and belonged to a very orthodox Hindu family which does not permit her to go outside, that is to say, to depose in Court in front of public.
34. The broad principles which must necessarily be kept in mind that exercising discretion in the matter of issuing of commission for the examination of a witness are that the person invoking it must be bona fide in making the application. The application of the defendant should not be subject to the same amount of scrutiny as that of the plaintiff. The reasons why the witness cannot be examined in Court must be carefully considered. Regard must be had to the conduct of the party and that it must be considered whether the examination on commission would result in manifest injustice to any party or is not calculated to permit the evidence being tested fairly or is likely to prove an abuse of process of Court. Justice above all is a paramount consideration and the discretion must be exercised in furtherance of the same in the particular facts and circumstances of an individual case. The test for rejection of the application should be that the application is not a bona fide one.
35. The plea that observing the demeanour of a witness by the learned Judge is not, however, a strong or social ground for refusing issue of commission for examination of a defendant, if her application is taken into consideration when the plea has been taken by the defendant that her appearance in public is impossible. 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 paramount consideration.
36. One should not lose sight of the provisions of Order 18, Rule 4 of the Code of Civil Procedure which is also amended in 1999 and effective from 1st July, 2002 where it says that the Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination provided that any objection raised during the recording of evidence before the Commissioner it may be recorded by him and it may be decided by the Court at the stage of arguments. The provisions of Order 18, Rule 4 is extracted below :-
"4. Recording of evidence. - (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party who calls him for evidence :
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court, shall be taken either by the Court or by the Commissioner appointed by it :
Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit.
(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination :
Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the Commission unless the Court for reasons to be recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.
(8) The provisions of rules 16, 16A, 17 and 18 of Order 26, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule."
37. Similarly, provision of Order 18, Rule 19 is also relevant for our purpose in this case which has been amended in 1999 effective from 1st July, 2002. The said provisions of Rule 19 is extracted below :-
"19. Power to get statements recorded on commission. - notwithstanding anything contained in these rules, the Court may instead of examining witnesses in open Court, direct their statements to be recorded on commission under Rule 4A of Order XXVI."
38. If provisions of Order 18, Rule 4 , Order 18, Rule 19 and Order 26, Rule 1 and Rule 4A (as amended) are conjointly taken up for consideration it comes out that Court has been vested with wide discretion to issue commission for recording of evidence on certain specified circumstances if the Court''s conscience is satisfied that the circumstances are such that it warrants appointment of commission. The Court has every right to differ from the ordinary rule of calling a witness into the witness box instead may issue a commission for recording of evidence. As held by the Hon''ble Supreme Court in the case of Salem, Advocate Bar Association, Tamil Nadu, Petitioner v. Union of India, Respondent reported in AIR 2005 SC 3353 it has been held that ''will'' of the Legislature which has by amending the Code provided for recording evidence by the Commissioner for saving Court''s time taken for the said purpose, cannot be defeated merely on the ground that the Court would be deprived of watching the demeanour of the witnesses. The Hon''ble Apex Court, in the said judgment, has referred to the provision of Order 18, Rule 4 to point out that it specifically provides that the Commissioner may record such remarks as it thinks material in respect of the demeanour of any witness while under examination and the Court would have the benefit of the observations if made by the Commissioner. Therefore, this Court cannot agree with the finding made by the learned Court below that the petitioner has not made out any case for issuing commission for recording of evidence. The finding made by the learned Court below appears to be the outcome of non-application of mind and also appears to be perverse particularly when the learned Court has not considered the pleadings based on the provisions of Section 132 of the Code of Civil Procedure which grants exemption for a ''pardahnashin'' lady, but according to the customs and manners of the country, ought not to be compelled to appear in public. There is no reason to refuse to issue a commission for a ''pardahnashin'' lady only on the ground that the lady has appeared in family gathering before and this view has been approved by various judicial pronouncements of different High Courts including Calcutta decisions because it is not based on the total pleadings made by the parties in the suit particularly when on perusal of the materials on record it deems reasonable that DW 5''s evidence would be of some importance for a decision on the case. Learned Court below has not come to any finding as to whether the said defendant DW 5''s evidence is vital or not. The learned Court below ought to have considered the same also. This Court finds that the application which has been filed by the petitioner for issue of commission for recording of evidence deserves to be allowed. The said application filed by the defendant in the Court below is, hereby, allowed. The order impugned is set aside. The learned Court below is directed to issue a commission subject to payment of fees to be paid by the defendant. However, since the suit is pending since 1996, the learned Court below is directed to specify the time within which the commission should complete the recording of evidence of DW 5 and after the Commissioner files its report with the evidence, the learned Court below will dispose of the suit as expeditiously as possible.
39. The revisional application stands allowed.
There will be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.
