Saboora Bivi Ammal vs Julaika Bivi Ammal

Govinda Menon, J.—The learned Subordinate Judge of Kumbakonam has construed the expression "" expenses of the commission "" in

Order XXVI, Rule 15 of the CPC as including the expenses to be defrayed by the opposite party to the one applying for the issue of a commission

for proceeding from the locality where the court is situate to the place where the commissioner is to function. There is no direct authority on the

point except the observations of my learned brother, Mack, J., in In Re: Velayudha Mudali and Others, where the learned Judge observes that the

expenses of the commission "" can be made to include expenses of the other parties to the litigation and can in suitable cases be ordered to be

deposited by the party at whose instance the commission was taken out. It seems to me that this proposition has been very widely stated. The

phrase "" expenses of the commission "" in ordinary parlance would mean only what the commissioner has to spend for summoning witnesses and for

other incidental expenses relating to the examination of the witnesses before him. No authority has been placed before me where the words have

been construed in such wide terms. Moreover, the Civil Rules of Practice (Rule 82) does not contemplate any such thing and all that the rule says

is

Every application for the issue of a commission shall be supported by an affidavit setting forth the estimated expenses of the commission, and the

remuneration, if any, of the proposed commissioner.

If one of the parties desires to travel luxuriously by air or in the first class on board a ship, it cannot be said that such a thing can be included as

expenses of the commission. In the absence of any direct authority I am not inclined to hold that the word "" expenses "" would mean that. The

learned Sub-Judge was of the opinion that the passage money and the railway fare would be Rs. 150; that cannot be allowed. The learned

Subordinate Judge directed the deposit of a sum of Rs. 250 before the issue of a commission. That sum has to be reduced. The petitioner will

deposit a sum of Rs. 125 in the lower court within one month from today. The learned Subordinate Judge will decide then as to the person to

whom the commission would issue and other necessary matters. If the amount is not deposited, the petition will stand dismissed with costs. Costs

of the revision petition will abide and follow the result of the suit.