2012 Supreme(Bom) 1967

In the High Court of Bombay at Goa
F.M. REIS, J.
Nilconta Gangadhar Sinai Amonkar, s/o late Gangadhar Amonkar
Versus
Vivekanand Nandakumar Sawardekar & Another
Writ Petition No. 650 of 2012
Decided on : 12-10-2012

Headnote:Civil Procedure Code, 1908 - Order XVIII, Rule 4, Order XXVI, Rule 1. - Constitution of India, Articles 226 and 227 - Writ petition - Challenging an order dated 9.8.2012 of trial Court, dismissing an application filed by petitioner for appointment of a Commissioner and to admit documents in evidence under Order XVIII, Rule 4 and Order XXVI, Rule 1 of CPC - Contention that trial Court considered provisions of Order XVIII, Rule 4 of CPC without taking note that application filed by petitioner was also under Order XXVI, Rule 1 of CPC and as such trial Court not justified in dismissing application - Held - Trial Court not justified to pass impugned order by refusing appointment of commission - Petitioner aged 87 years, confined and sick and not able to come to Court personally - Trial Court can always issue a commission under Order XXVI, Rule 1 of CPC - Impugned order quashed and set aside - Petition allowed.

       Civil Procedure Code, 1908 - Order XXVI, Rules 1 and 4-A - Appointment of commission.

       Where a witness, 87 years old, was unable to attend Court therefore a commission to examine said witness and record his evidence ought to be appointed. - On plain reading of the Rules 4-A, it cannot be disputed that in cases in which a witness is sick or unable to attend the Court, it is always open to the Court to record evidence of such witness on commission. Rule 4-A further provides that in the interest of justice, the Court can appoint a Commissioner to record evidence. In the course of recording of such evidence, the Commissioner is always entitled to take any documents sought to be relied upon by a party and in case there are any objections, the Commissioner would have to record such objection and refer the matter to the Judge for appropriate decision. It cannot be disputed that the Commissioner may not be able to pass any order admitting any documents in evidence or be permitted to mark such documents as an exhibit. This exercise would have to be done by the Judge after the commit refers the matter to the Judge.

       In fact, Order XXVI, Rule 7 of the Civil Procedure Code imposes an obligation to the commission to return the commission along with the evidence recorded by him during the course of such commission. Order XXVI, Rule 8 of the Civil Procedure Code clearly provides in what circumstances such deposition can be read in evidence. In this context, it is clearly provided under Order XXVI, Rule 8 of CPC that the Judge would have to pass an appropriate order accepting such deposition recorded by the Commissioner to be read in evidence. In the course of such exercise, the Judge can always consider any objections and/or decide as to whether any documents which have been produced before the Commissioner can be marked as an exhibit.

       For the purpose of exhibiting the documents, the personal present of the witness may not be necessary. In the present case, the petitioner has got material on record to suggest that the petitioner is confined and/or sick which does not permit him to come to the Court personally. In such circumstances, the Judge can always issue a commission under Order XXVI, Rule 1 of Civil Procedure Code for recording of evidence. The findings of the Judge to the effect that such commission can be done only for the purpose of cross-examination is not justified. It is to be noted that this is not a case where the evidence is being recorded on commission under Order XVIII, Rule 4 of the Civil Procedure Code. The Civil Procedure Code clearly provides that in specific situation under Order XXVI, Rule 1 of CPC the Court can appoint a Commissioner for recording evidence.

       The Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated hereinabove. A word caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent miscarriage of justice and expedite trial, which is the dire need of the time.

       In Harish Vithal Kulkarni, 2010 (1) All MR 661, the Full Bench has held that the distinction between the two provisions indicate the extent of discretion that has been given to the Court to decide whether the cross-examination of witness whose affidavit has been taken on record should be conducted in Court or before the commission. It has been further observed that at the same time, since the Commissioner is not competent to decide the question of proof or admissible of documents in evidence, the discretion is given to the Court either to decide such aspect before sending the matter to the Commissioner for recording of the cross-examination or decide this issue after the report is submitted by the Commissioner.

       Considering the judgment of the Full Bench of the Court referred to in the case of Hemendra Rasikial Ghia, 2008 (6) All MR 352 (FB), it cannot be disputed that the Court has discretion to consider the facts and circumstances and in the interest of justice to decide any procedure which would be appropriate in the circumstances of the case. Considering the said judgment of this Court and in view of the Order XXVI, Rule 1 of the Civil Procedure Code, the Judge was not justified to pass the impugned order by refusing the appointment the commission.