K. L. MANJUNATH, J.

( 1 ) THE petitioner is the plaintiff in O. S. No. 189 of 200. . . on the file of the Principal Civil Judge (Senior Division), Hubli. The respondents are the defendants in the suit. The petitioner had filed an application for appointment of a Court Commissioner to record her evidence on the ground that she is unable to appear before the Court to give her evidence. The application filed by the petitioner was allowed. One Sri c. P. Wali, Advocate was appointed as a Commissioner to record her examination-in-chief also. The respondents Counsel objected for recording of examination-in-chief by the Commissioner. Therefore, the petitioner filed an application requesting the Court to permit the commissioner to record her examination-in-chief. The application was opposed by the respondents and the application is also dismissed. Being aggrieved by the said order, the present petition is filed.

( 2 ) THE only point to be considered by this Court in this writ petition is whether the Commissioner who has been appointed by the Court to record the evidence of a witness is required to record the examination- in-chief by way of oral evidence or the party has to file an affidavit in lieu of examination-in-chief.

( 3 ) THE learned Counsel appearing for the petitioner contends that the commissioner was not appointed under Rule 6 of Order 18 of the CPC and that he was appointed under Order 26, Rule 4-A of the CPC. If a commissioner is appointed under Order 26, Rule 4-A of the CPC, evidence has to be recorded as per Rule 19 of Order 18 of the CPC. Therefore, he requests this Court to set aside the order passed by the trial Court.

( 4 ) AFTER the amendment of the CPC as per Rule 4 of Order 18, the examination-in-chief of a witness shall be only on affidavit. As per sub-rule (2) of Rule 4 of Order 18, the cross-examination has to be taken either by the Court or by the Commissioner appointed by it. Therefore, it is clear, the examination-in-chief cannot be recorded even if a Court appoints a Commissioner.

( 5 ) ACCORDING to the learned Counsel for the petitioner, whenever a court appoints a Commissioner under Order 26, Rule 4-A, statement has to be recorded as per Rule 19, Order 18 of the CPC which reads as hereunder: "power to get statements recorded on commission.-Notwithstanding anything contained in these rules, the Court may, instead of examining witnesses in open court, direct their statements to be recorded on commission under rule 4-A of Order 26". From this it is clear that a Commissioner can be appointed under two provisions of law, one under Order 18, sub-rule (6) of Rule 4 of the CPC and a Commissioner can also be appointed under Order 26, Rule 4-A of the CPC. Even if a Commissioner is appointed under Order 26, Rule 4-A of the CPC, recording of evidence as contemplated under Order 18, rules 1 and 2 cannot be by passed. Order 18, Rule 4 (1) of the CPC is mandatory and it is not directory. Therefore, the Trial Court is justified in rejecting the application of the Commissioner.

( 6 ) IN the circumstances, I do not see any reasons to interfere with the order of the Trial Court. Accordingly, the writ petition is rejected.

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