AIR 1965 MADRAS 266 ::1965 (2) Com LJ 37 ::ILR (1964) 1 Mad 1012

Madras High Court

Hon'ble Judge(s): Sadasivam , J

(A) Madras Original Side Rules , O.26 R.3— High Court Rules and Orders - Commission for examination of witness de bene esse - If has nothing to do with who is to lead evidence. Civil P.C. (5 of 1908) , O.18 R.16— It is clear from O.XXVI, R.3 of the Original Side Rules that where a commission is issued for the examination of a witness de bene esse, the Court shall adopt the procedure prescribed for the examination of a witness on commission under the Civil P.C.(Para 5) Examination of a witness de bene esse or on commission cannot affect the question of right to begin the case. Even in criminal cases, an accused person could examine on commission a witness, who is about to leave the jurisdiction of the Court. It would be an astounding proposition of law to contend in such cases that the accused should lead the evidence before the prosecution proves its case.(Para 5) Therefore, it cannot be said that the defendant should complete his evidence before the plaintiff is called upon to adduce his evidence, because the defendant had examined a certain witness de bene esse in England before the Master. In such a case the plaintiff would be entitled to insist upon the witness being examined as a witness during the trial of the suit if he happened to return from England and happe....