Dhanu Ram Mahto vs Murli Mahto on 12 February, 1909
10. I take this occasion to point out that when this case comes on for trial the mere fact that this commission has been ordered now will be no reason whatever, by any one to look at it unless it is found that at the time of the hearing sickness or infirmity or other reason prevents the witness from giving his evidence in the ordinary way. I say that the more emphatically as there is some authority in the books particularly in the case of Dhanu Bam Mahto v. Murli Mahto [1909] 36 Cal. 566, which gives colour to the view that once a commission has been ordered and executed the commission evidence goes in ipso facto and without further consideration. I do not say that that proposition was intended to be laid down in the case in which I have referred, but the decision and the reasoning lend colour to that view and I am particularly anxious, therefore, that it should be made clear to the lower Court that Rule 8, Order 26, is as much a rule of procedure in the mofusil as anywhere else and that what the Privy Council has laid down and this Court has recently laid down in the case to which I have referred is the proper method for conducting the case. It does not seem to me that in this case the question whether the man is shown to be so ill that it was advisable to take his evidence on commission is a question of such a character that the learned Subordinate Judge is bound to answer it correctly on pain of being guilty of a material irregularity.