( 1 ) THESE appeals were allowed earlier on 9th March, 1994, setting aside two orders of the learned Single Judge - (1) an order declining the list of witnesses as it was filed out of time and (2) appointing a commissioner to record evidence with a power to the commissioner to disallow questions which did not arise from the pleadings of the parties or the issues. As to the former Order, the Bench declined to interfere with the order of the learned Single Judge, but permitted the appellant to move an application for review or for condonation of delay for taking the list of witnesses on record. However, the second REFERRED TO order appointing the Commissioner, was set aside on the ground that the said order went beyond the provisions of Order 26 of the Code of Civil Procedure. None of the witnesses was exempted from appearance in Court, none was sick, nor was infirm. The Bench proceeded on the assumption that provisions of Order 26 Civil Procedure Code are exhaustive of the circumstances under which a commissioner could be appointed to examine the witnesses and therefore, an order appointing a commissioner to examine all witnesses, irrespective of the circumstances REFERRED TO in Order 26 Civil Procedure Code will be illegal.

( 2 ) THE learned counsel for the plaintiff (respondent in the appeal) moved an ap plication in each of the appeals seeking review of the order made in the Appeal, to the extent of the said order setting aside the appointment of the Commissioner.

( 3 ) MS. Luthra strongly Relied on on Chapter X-A of the Delhi High Court Civil (Original Side) Rules and contended that the Rule inserted as per the said Chapter in the year 1991 was not placed before the Bench on the earlier occasion and that under this amended Rule, the court has ample power to appoint a Commissioner to record evidence in a case, without being conditioned by the provisions of Order 26 CPC.

( 4 ) THE Rule Relied on upon by the learned counsel reads thus :- "x-A Evidence on Commission at Court s direction. Commissions to examine parties and witnesses :- Not withstanding 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.

( 5 ) NO doubt, there was an obvious mistake in not pointing out the above Rule while arguing the appeals earlier. In the circumstances, we hearer thr leanod counsel on both sides at length as to the scope of the above Rule in Chapter X-A to consider whether the earlier order should be reviewed.

( 6 ) CHAPTER X-A of the Rules over-rides the provisions of Order XXVI of C. I c, in view of the opening non-obstante clause. Its effect is to say that inspite of the provisions of Order XXVI of the Civil Procedure Code, the provisions stated in this Rule will have its full operation and that the provision embraced in Order XXVI of Civil Procedure Code will not be an impediment for the operation of the Rule in Chapter X-A. The principle implicit in the contention of Ms. Luthra is that to understand the scope of this non- obstante clause, it is necessary to ascertain what the enacting part of the Rule in Chapter X-A of the Rules provides on a fair construction of the words used according to their natural and ordinary meaning. The non-obstante clause is to be understood as operating to set aside as no longer valid anything contained in the provisions of Order XXVI of the Code of Civil Procedure, which are inconsistent with the Rules. (Vide Aswini Kumar Ghosh Vs. Arbmda Bose: AIR 1952 SC. 369 at 377, para 27 ).

( 7 ) THE enacting part of the Rules says that the court may, at its discretion, in any suit, at any stage, direct that the parties and witnesses be examined on commission. The power given to the Court to direct the examination of any witness or party, is not trammeled by any conditions. The c