Trial Judges must decide objections as to admissibility of documents before appointing a Commissioner for recording evidence, and have discretion in deferring objections to the admissibility of documents to the final hearing, following the principles from HemendraRasiklal Ghia (supra).

Dr. D.Y. Chandrachud, J.

1. This reference before the Division Bench arises from an order dated 4 July 2012 of a learned Single Judge, Hon'ble Mr. Justice B.R.Gavai. On 16 September 2011, an order was passed by Shri Justice S.J. Vazifdar in the suit, in the following terms:

"2. The evidence shall be recorded on commission. Mr.Vikram Sathye, an Advocate of this Court is appointed as Commissioner for recording evidence. The parties shall tender their documents before the Commissioner. The parties shall be entitled to raise their objections, oral and documentary before the commissioner. The parties are at liberty to cross-examine the witnesses without prejudice to their objections which shall be decided at the final hearing. The costs of the Commissioner shall, in the first instance, be shared by the parties equally and the same shall be subject to the final orders in the suit."

Orders similar to this order were passed by the learned Single Judge in various other suits.

2. Mr. Justice S.C. Dharmadhikari recalled the orders passed by the earlier learned Single Judge. One of them was an order dated 7 May 2012 in Suit No.2064 of 2005, which reads as follows:

"2. As far as main matter is concerned, it is stated that the Court has framed issues and proceeded to appoint commissioner for recording evidence. The order in that behalf is of 8th November, 2011.

3. Repeatedly I have observed that such orders have been, if passed, by consent of parties are contrary to law and cannot be sustained. They are per in curiam.

4. In these circumstances, the order appointing the Commissioner is recalled and set aside. If the plaintiff does not proceed to file affidavit of evidence and documents within six weeks from today, the suit shall stand dismissed for want of prosecution without any further reference to Court."

The subsequent order dated 7 May 2012 and similar other orders to that effect appear to have been passed on the basis of a judgment of a Full Bench of this Court in Hemendra Rasiklal Ghia and others Vs. Subodh Modi and others (2008(6)-Bom.C.R.-519).

3. Mr. Justice S.J.Vazifdar, while appointing a Commissioner to record the evidence, allowed the parties to tender documents before the Commissioner and to raise their objections to the admissibility of the documents before the Commissioner. The learned Judge kept the objections of the parties to the admissibility of the documents open till the final hearing of the suit and permitted the parties to cross-examine the witnesses without prejudice to those objections. Mr. Justice S.C.Dharmadhikari while recalling those orders, appears to have taken the view that objections as to admissibility of the documents must be decided in the first instance by the learned Trial Judge before referring the suit to a Commissioner for recording evidence. When the present suit came up before Mr. Justice B.R.Gavai, the learned Judge was of the view that the observations of Mr.Justice S.C.Dharmadhikari in the order dated 7 May 2012 in Suit No.2064 of 2005 and in similar orders recalling the earlier orders of Mr. Justice S.J.Vazifdar on the ground that those orders were per incuriam, were not correct. In the circumstances, the learned Single Judge directed that the papers be placed before the Hon'ble Chief Justice for referring the matter to the Division Bench or to a Larger Bench.

4. Essentially the issues which fall for consideration are based on the interpretation of the law as enunciated in the judgment of the Full Bench in HemendraRasiklal Ghia (supra). To clarify the issues which arise in this reference, we have formulated the following questions:

(i) When a Trial Judge directs that recording of evidence should take place before a Commissioner, should objections as regards admissibility of documents be decided by the Court before referring the suit to the Commissioner?

(ii) Does a Trial Judge have an element of discretion in determining that in a particular case, the admissibility of a document woul