JUDGMENT
Das, J.
1. This application is directed against the order of the learned Subordinate Judge of Patna, dated the 1st of December 1923. An application was made before him for the examination of certain: persons including the plaintiff in London. The teamed Subordinate Judge has acceded to the application. The suit in which the application was made was instituted by one Herbert Francis, residing at No. 21, Bedford Row, London, against Nawab Syed Muhammad Akbar Ali, residing in Patna and certain other persons. The allegations on which the suit was brought were these: That on the 15th of September 1919 Nawab Wasig Hussain Mobarak Jung, the son of the first defendant then residing in London, executed a bond in favour of the plaintiff by which he agreed to pay to the plaintiff the sum of £1,400 in five years and to pay interest at 15 per cent. per annum annually. The plaint goes on to assert that the bond “was intended to constitute a mortgage and was sent to India to fee registered, where it was lost, was never registered” and the plaintiff says that he does not rely on the agreement between him and the deceased as a mortgage. The plaintiff then states that there are three instalments of interest due to him amounting to £630. It is then asserted that on the 2nd of December 1919, the deceased executed a promissory note by which he agreed to pay to the plaintiff the sum of £35 six months after that date. The suit was instituted to recover £35 and interest thereon £6-8-6, and the sum of £630 due as interest upon the bond which according to the plaintiff is lost.
2. Now this is the suit and the plaintiff applied before the Subordinate Judge for an order permitting him to examine on, commission himself, his two clerks, Doctor Abdul Mazid now in England, and the widow of the deceased Mrs. Jung. The learned Subordinate Judge thought that the application was a reasonable one and he saw no objection whatever in granting it. Mr. Sultan Ahmed on behalf of the defendant No. 1, the petitioner in this Court, objects to the order passed by the learned Subordinate Judge.
3. A distinction must, in my opinion, be drawn between the plaintiff himself and the witnesses whom he seeks to examine on his behalf. The provision of law under which the application was made is contained in Order XXVI, Rule 5 of the C.P.C. which provides as follows: “Where any Court to which application is made for the issue of a commission for the examination of a person residing at any place not within British India is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.” There was undoubtedly a jurisdiction in the Court to allow the examination of the plaintiff on commission, but the question, in my opinion, is, whether the exercise of that jurisdiction in this case does not amount to a denial of justice to the defendant. In my opinion, an order for the examination of the plaintiff on commission is a very strong order to pass in any case. The case of the defendant stands on an entirely different footing. As was pointed out in the case of Sarat Kumar Ray v. Ram Chandra Chatterjee 68 Ind. Cas. 9 : 35 C.L.J. 78 : (1922) A.I.R. (C.) 42, “Where an application is made by a defendant…who lawfully resides out of the jurisdiction of the Court, according to the Ordinary course of his life and business, the Court will not regard the case with the same strictness as the case of the plaintiff who has instituted his suit in a forum of his choice though he resides beyond the jurisdiction of such Court.” It is not difficult to understand the principle upon which the distinction is drawn between the case of a plaintiff and the case of a defendant. The plaintiff is entitled to choose his own forum; and having chosen his forum he is not entitled to say, “I reside outside the jurisdiction of the Court, therefore, I ask to be allowed to examine myself on, commission.” The obvious reply is, “Why did you choose that particular forum? It was open to you to bring the suit in the Court where you reside.” So far as the defendant is concerned, obviously the same argument does not apply in his case. In the case of Nadin v Basett (1881) 25 Ch. D. 21 : 53 L.J. Ch. 253 : 49 L.T. 454 : 32 W.R. 70 the plaintiff residing in New Zealand brought an action in England for redemption, alleging himself to be the heir-at-law of a person who had died intestate entitled to a remainder in fee in the equity of redemption which had fallen into possession since his death. As was pointed out by Kay, J., in the Court of first instance, and Cotton, L.J., in the Court of Appeal, in order to make out his personal identity it was necessary for him “to produce evidence showing himself to be the person who landed in New Zealand from such ship and in such a year.” He applied for his own examination and the examination of certain number of witnesses in New Zealand. Kay, J., thought that to compel him to come to England and to give evidence in his favour would be to deny him justice, for it was not possible for him to incur the expenses involved in a journey to England from New Zealand; and he allowed the application. In appeal a different view was taken. The decision of Cotton, L.J., on this point is as follows: “The great contest, however, is as to the examination of the plaintiff. The examination before a special examiner may be ordered if the Court considers it necessary for the purposes of justice.’ No case is made that it Is practically impossible for the plaintiff to attend at the trial, and what we have to consider is whether tinder the circumstances of the particular case justice requires that he should be examined in this way it appears to me that it is not consistent with the due administration of justice to allow the plaintiff to give evidence in his own behalf without attending to be orally cross-examined.” In the result the learned Judge qualified the order passed by the Court of first instance by inserting a proviso that the depositions of the plaintiff are not to be read if the defendant requires him to appear at the trial to be examined and cross-examined. We offered to pass an order in these terms in this case, but Mr. B.N. Mitter on behalf of the plaintiff opposite party says that an order in this form will be perfectly useless so far as he is concerned. That being so, the question is, whether we ought to maintain the order passed by the learned Judge in the Court below for the examination of the plaintiff on commission in England, It is contended before us by Mr. Mitter that the learned Subordinate Judge acted with jurisdiction; and that we ought not to interfere in this case, since it is not shown that he had no jurisdiction to act in the way that he has done. This question was also investigated by Sir Asutosh Mookerjee in the case to which I have already referred. The learned Judge cited the following passage of Lord Esher, M.R., in Emanuel v. Soltykoff (1892) 8 T.L.R. 331: “The Court had to exercise its discretion as to granting a commission, and this Court would be very unwilling to interfere with the exercise of that discretion by the Court below. Each case must depend upon its own circumstances and no rule as to the exercise of that discretion could be laid down. If this Court saw that the discretion had 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 Court would interfere. The Court below seemed to have treated the matter as if it was merely a commission to examine witnesses.” This is exactly the point here. In my opinion the learned Judge in the Court below dealt with the application as if it was merely an application for examination of witnesses on commission. He conceded, it is true, that ordinarily a party himself or his servants should not be allowed to be examined on commission; but he did not sufficiently realise that even in the case of parties to the suit the case of a plaintiff stands entirely on a different footing and that it is an extraordinary thing to pass an order for the examination of a plaintiff on commission. That being so, I arrive at the conclusion that the learned Judge in the Court below exercised his jurisdiction with material irregularity and that this Court sitting in revision is entitled to interfere with that order in aid of justice. The order of the learned Subordinate Judge must accordingly be set aside so far as this point is concerned.
4. The other question is whether the rest of his order ought to stand. It is urged that two of the witnesses are the servants of the plaintiff, and that in any case there is no justification for the examination of all these witnesses in England especially as the whole case will then have to be tried in India on dead evidence. That maybe so; but we cannot at this stage say that the plaintiff is not entitled to have the evidence of his own witnesses. It is not shown that the plaintiff can procure their attendance in India. They may refuse to come to India; and, to say at this stage, that the plaintiff is not entitled to have them examined on commission, is practically to deprive the plaintiff of justice. I am not willing to take this risk in this case. It was suggested that their evidence is really irrelevant. That may be so, but I am not prepared at this stage to say how their evidence will affect this case.
5. The result is that the order of the learned Subordinate Judge in so far as he has directed the examination of the plaintiff on commission is set aside. The rest of the order will stand. The petitioner is entitled to the costs of this application. Hearing fee five good mohurs.
Ross, J.
6. I agree.