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7. Circumstances may arise in a case where it is not possible for a party to examine his witnesses in Court. A witness may be about to leave the country; another may be too old or dangerously ill; still another may be living either in a foreign country or very far from the place where the Court sits. In order to meet such contingencies, a party is allowed to examine a witness de bene esse or on commission. This is allowed to be done on the condition that if the witnesses continue to be ill or absent during the trial their evidence may be read at the trial, but if they recover or return, then the evidence shall be taken in the usual manner.

11. Order Xxvi provides for recording the evidence of witnesses on commission. It is a departure from the general rule that the witnesses must be examined in the open Court before the judge trying the case. This provision has been made in order to meet contingencies like a witness being too ill to attend the Court or is a resident beyond the local limits of jurisdiction of the court. Of course a party is at liberty to produce such witnesses in court. It is important to remember that the power of Court to issue commissions is discretionary (see M/s. Filmistan Private Ltd. Bombay v. M/s. Bhagwandas Santprakasb, ). It should also not be forgotten that the evidence of a witness recorded under a commission does not automatically become evidence in the suit. Rule 8 specifically lays down that such evidence "shall not be read as evidence in the suit without the consent of the party against whom the same is offered", unless the party examining the witness tenders such evidence in the court and succeeds in showing that the circumstances under which the witness was examined on commission continue to exist at the time of the trial. In N. Mohamed Hussain Sabib v. The Chartered Bank, Madras, , the examination of a witness on commission was held not to affect Rule 2 of Order xviii, and it was observed thus:- "(The) 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. It should be noted that the' plaintiff would be entitled to insist upon Mr. yce being examined as a witness during the trial of the suit if be happened to return from England and happened to stay at Madras at the time in spite of the fact that be was already examined de bene esse. Hence the question of admitting the evidence given by Mr. Pryce before the Master could arise only when the first defendant adduces oral evidence and wants to mark the evidence given by Pryce as its evidence."

63. In my opinion this argument is based on a misconception. Order 18, Rule 16 itself shows that the rule regarding onus of proof need not be followed in all the circumstances. That rule provides that where a witness is about to leave jurisdiction of the Court or other sufficient cause is shown why his evidence should be taken immediately, the Court may take the evidence "forthwith" in the presence of the parties or on a day fixed for the examination after notice to the parties. The evidence taken under this rule should be signed by the witness after being read over to him. "It may then be read at any hearing of the suit." This rule provides for the de bene esse examination of a witness about to leave the jurisdiction of the Court. This rule has nothing to do with the principles laid down in Rules 1 to 3 of Order 18 as to the right of the parties to lead evidence in the trial of a suit. The decisions of Punjab and Orissa cited above are rulings on O. 18 and of no assistance in deciding the question of issuance of commission. The examination of a witness de bene esse cannot affect the question of right to begin the case. Where a defendant has examined a witness de bene esse, the Plaintiff who has the right to begin the case, cannot insist that the defendant should complete his evidence, before he (the plaintiff) is called upon to adduce his evidence. See Mohamed Hussain v. Chartered Bank, .