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High Court Of Delhi
FASHION LINKERS - Appellant
Versus
SAVITRI DEVI - Respondent
First Appeal (OS) 167 of 1995
Decided On : 08/17/1995
LOCAL COMMISSIONERS - APPOINTMENT - SCOPE OF RULE IN CHAPTER XA OF DELHI HIGH COURT (ORIGINAL SIDE) RULES - INTERPRETATION - COURT'S DISCRETION - SAFEGUARDS.
Fact of the Case:
In a suit for possession of an industrial area premises, the trial court appointed a Local Commissioner by consent of parties to record evidence on commission. The defendant appellant filed an IA challenging the appointment of the Commissioner, contending that it was void and consent could not confer jurisdiction.
Finding of the Court:
The court held that the order appointing the Commissioner was not void and that consent could confer jurisdiction. The court further held that the Rule in Chapter XA of the Delhi High Court (Original Side) Rules is not to be treated as an exception or proviso to Order 26 of the Code of Civil Procedure, but rather as a substantive provision conferring wide discretion on the court to appoint a Commissioner.
Issues: 1. Whether the order of appointment of Commissioner is void? 2. Whether the Rule in Chapter XA of the Delhi High Court (Original Side) Rules is to be treated only as a proviso or exception to Order 26? 3. What is the scope of the Rule in Chapter. XA? 4. What are the safeguards to be followed so that the appointment of Local Commissioner under the Rule can subserve the real purpose?
Ratio Decidendi: 1. The court held that the order appointing the Commissioner was not void and that consent could confer jurisdiction because: (a) the parties had voluntarily offered or agreed for such appointment on 8. 7,92; (b) there was no demur for 3 years and witnesses were examined before the Commissioner, till this IA was filed in 1995 to declare the evidence as obtained without jurisdiction; (c) the Commissioner had not only examined PWs 3 and 4 but also the appellant-defendant during the course of the last three years; and (d) the contention of counsel that the Local Commissioner, was not given power to consider the admissibility or relevance of a question or to overrule any objection to any question is a submission which is contrary to law. 2. The court held that the Rule in Chapter XA of the Delhi High Court (Original Side) Rules is not to be treated as an exception or proviso to Order 26 because: (a) the Rule starts with a non-obstante clause specifically referring to Order XXVI Code of Civil Procedure which it overrides; (b) the Rule is intended to serve a definite purpose and is not intended to cover only the few exceptional categories referred to in Deepak Kapur's case; and (c) the background or situation in which the Rule came to be made in 1991 shows that it was intended to address the problem of backlog of suits and to expedite the disposal of cases. 3. The court held that the scope of the Rule in Chapter XA is not restricted to the exceptional or emergent situations referred to in Deepak Kapur's case, but includes the following situations: (a) where both parties agree to have the parties/witnesses examined on Commission to have a quick disposal of the suit whether it is old or new; (b) where the suit is quite an old suit, which has been languishing without trial, and the Court appoints a Local Commissioner; and (c) in matters where the suit is not that old and the parties do not consent but otherwise there is very grave urgency in the matter or where a very large number of witnesses have to be examined. 4. The court held that the following safeguards should be followed so that the appointment of Local Commissioner under the Rule can subserve the real purpose: (a) the Court will record reasons for appointment, whenever the appointment is not by consent; (b) the Court will not authorise the Commissioner to exercise any judicial functions such as rejecting the questions/answers or documents; (c) the Court may take care to direct in the very order appointing the Local Commissioner that at regular intervals of three months or so as the Court may deem fit, the suit be listed before Court for monitoring the progress of the evidence before the Local Commissioner; (d) the Court may consider awarding costs if it finds any party obstructing the evidence unreasonably; (e) the Court may consider whether change of the Commissioner is necessary if it finds the parties eager and the Commissioner not active or is having other good causes for not completing his work, like ill-health etc.; (f) the Court may ask the Commissioner, who is at fault and who has done no work, to pay back any fee he might have received.
Final Decision: The court dismissed the appeal and confirmed the order appointing the Commissioner.
( 1 ) HIS appeal raises a question of appointment of Local Commissioners on the Original Side of this Court for recording evidence of parties and witnesses. It is therefore of considerable importance.
( 2 ) THE suit in this case was Filed by the respondent in 1988 for possession of an industrial area premises, for mandatory direction and for recovery of Rs. 7,99,500. 00 By consent of parties, an order dated 8. 7. 1992, was passed by a learned Single Judge of this Court appointing Shri J. R. Sharma, Joint Registrar of this Court, as Local Commissioner, for recording of evidence on commission. In fact, part of the evidence was earlier recorded in Court and after the Local Commissioner was appointed, he examined PWs 3 and 4 and the complete evidence of the defendant. Subsequently, a bank officer was to be examined as per order of the Court dated 9. 7. 92. There was a specific direction to the Commissioner not to disallow any question but leave it to the Court to decide whether the question/answer could be taken on record. The admissibility there of was to be determined by the Court at the time of hearing of arguments.
( 3 ) AFTER the Local Commissioner was thus appointed by consent and evidence was also recorded, during the last three years, the defendant appellant did not raise any objection but then filed IA 3671/95 for a declaration that the evidence recorded by the Local Commissioner is neither sustainable nor tenable. Reliance was placed on the Division Bench judgment in Sh. Deepok Kapur vs. Ashok K. Ghose and Ors (1994) (30) DRJ 489 (DB) to contend that the order appointing Commissioner was void and consent could not confer jurisdiction on Court. The learned trial Judge after staling that the Commissioner was appointed by consent, that the Court had rightly exercised discretion in appointing a Commissioner under Chapter X-A of the Original Side Rules, and staling that the appointment did not violate even the principles laid down in Deepak Kapur s case, dismissed the IA. This is an appeal by the defendant against that order.
( 4 ) DURING the course of the hearing before us we pointed out to the learned counsel for the appellant that the Division Bench in Deepak Kapur s case had given a very restricted scope for this Rule in Chapter X-A of the Delhi High Court (Original Side) Rules notwithtanding the non-obstante clause and that the Supreme Court had, in an appeal against the connected case ( FAO 64/94) where the Judgment in Deepak Kapur s case FAO 63/94 was followed, left the question open.
( 5 ) WE may now refer to the order dated 24. 10. 94 passed by the Supreme Court in SLP (Civil) 17238, 17239/94 (against judgment in RA 15/94 in FAO (OS) 64/94 and RA 14/94 in FAO 63/94 dated 13. 5. 94) (K. Ghosh vs. Rotary International and others ). It reads:
"keeping in view the facts of this case, we do not find any ground to interfere with the order of the High Court. The Special Leave Petition is, therefore, dismissed. The question of law raised by the petitioner in the Special leave petition is left open. "
( 6 ) IN Deepak Kapur s case, the learned Single Judge had appointed the Local Commissioner for recording evidence "with a power to the Commissioner to disallow questions which did not arise from the pleadings of the parties or the issues. " On appeal, the Bench initially applied only Order 26, Code of Civil Procedure, and held that the order of the learned Single Judge was bad and allowed the appeal. On a review application, the Court allowed the same and reconsidered the matter in the light of the new Rule in Chapter XA of the Delhi High Court (Original Side) Rule brought into force in 1991. That rule, it was noticed, was very wide in so far as Commissioner s appointment was concerned. The Division Bench held that, notwithstanding the obstante clause in the Rule and the apparent width of the Rule, the discretion to appoint a Commissioner was to be limited because of various considerations viz. a Commissioner cou
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