Chapter X-A of the Delhi High Court (Original Side) Rules, 1967 was not merely a proviso or an exception to Order 26 of the Code of Civil Procedure and that the Court could exercise power under this Rule even for other reasons/circumstances not set out in Order 26 CPC, if in its discretion it was necessary to do so.

( 1 ) THE question which has been referred for consideration of the Full Bench is:

"whether or not the entire evidence in a suit can be referred to a Commissioner even without consent and even in cases where the Suit is not very old and there is no grave urgency or peculiar circumstance requiring such a course to be followed".

( 2 ) THIS question was referred to thefull Bench because it was found that using Chapter X-A of the Delhi High Court (Original Side) Rules, 1967 some Courts were referring the entire evidence in suits to Local Commissioners even without the consent of parties and even though the matters were not very old and/or there were no special circumstances requiring such a course to be followed. Chapter X-A reads as follows :

EVIDENCE on Commission at Court s Discretion

COMMISSION to examine parties and Witnesses :- Notwithstanding anything contained in Order XXVI of the Code of Civil Procedure 1908, the Court may, at its discretion, in any suit, at any stage, direct that the parties and witnesses be examined on Commission The evidence recorded on commission shall be read as evidence in the suit. "

( 3 ) AT this stage itself it must be clarified that this Court is merely considering the question which has been referred to it. This Court dealing with the merits of the Appeal or the question raised by Respondent No. 9 regarding maintainability of the Appeal. Mr. Kapur has fairly stated that he is arguing the pure question of law which has been referred to this Full Bench without prejudice to the contention that the Appeal is not maintainable.

( 4 ) THE interpretation of Chapter X-A of the Delhi High Court (Original Side) Rules, 1967 vis-a-vis Order 26 of the Code of Civil Procedure came to be considered by a Division Bench of this Court in the case of Deepak Kapur V/s. Ashok K Ghose and Ors. reported in 1994 (30) DRJ 489. In this case the Division Banch held that Chapter X-A was merely an exception or a proviso to the power of the Court under Order 26 of the Code of Civil Procedure. It was held that it is not a provision permitting a "wholesale" delegation of the Court s function to examine parties and witnesses in suits. In coming to this conclusion the Court took into consideration following aspects: (a) that Chapter X-A did not provide the circumstances under which a Commission could be appointed. (b) the fact that under Order 26 of the Code of Civil Procedure the Court could not appoint a Commissioner to examine witnesses except under certain circumstances. (c) the fact that under Order 26 Rule 16-A the Commissioner had no power to overrule any objection to a question put to the witness and that a power to overrule the question and strike of an answer was a judicial power which could not be delegated to a Commissioner. It was held that it was for the Court, which was seized of the lis between the parties, to examine the material before it and decide whether or not a particular piece of evidence was one which could be legally looked at. (d) the Court also took into account Section 165 of the Evidence Act which enabled the Judge to ask any question to any witness or obtain documents or proof of relevant facts. The Division Bench observed that if all the witnesses were examined on commission it would not always be possible for the Court to exercise these powers always. (e) the fact that the atmosphere in the Court generally acts as a deterrent against the witness deposing falsely and that the demeanour of the witness could be watched and scrutinised by the Judge in a better way than the Commissioner. It was accordingly held that examination of parties and witnesses in the Court should be considered to be the normal rule and only under exceptional circumstances a departure should be made from that rule. It was held that if a court directs that all parties and all witnesses in the suit should be examined on commission than there should be extraordinary circumstances to justify the exercise of