The appointment of a Local Commissioner for recording evidence in a divorce petition is in compliance with the legislative mandate to conclude the trial within six months.

G.S. SISTANI, J.

1. Although process fee has been returned with objection, Mr. V.K. Gupta, learned Senior Counsel, on instructions, has entered appearance on behalf of the respondent on an advance copy having been served and submits that the appeal is not maintainable.

2. Challenge in this appeal is to the order dated 04.07.2018 and 09.07.2018 passed by the Principal Judge, Family Court, Saket, New Delhi. We may note that this matter was listed on 03.08.2018 when we had passed the following order:

“MAT.APP.(F.C.) 182/2018 & CM No.30797/2018 (stay)

Challenge in this appeal is to the orders dated 04.07.2018 and 09.07.2018 passed by the Principal Judge, Family Court, Saket, New Delhi.

Mr. Singh, counsel for the appellant submits that on account of slanderous and sensitive nature of allegation made against the appellant, the appellant could not appear for recording of evidence before the local Commissioner appointed by the Family Court. While prima facie we find no infirmity in the orders passed by the Principal Judge, Family Court who has also directed to record the evidence of the appellant in Camera. However, we are of the view that a lady local Commissioner should be appointed in the matter. Notice to show cause as to why the appeal be not admitted.

List on 06.08.2018.

The appellant will take steps to serve the respondent by all modes including dasti. Additionally, counsel will be informed telephonically via whatsapp and e-mail today itself.

Copy of this order be given dasti under the signature of Court Master.”

3. Today, counsel for the appellant submits that appellant is not agreeable for appointment of a lady Local Commissioner who would hold proceedings in camera. He relies on a judgment of the full bench of this Court rendered in the case of Pushpa Devi vs. Bimla Devi & Ors. reported in 2000 II AD (Delhi), more particularly paragraphs no.10 to 12, which we reproduce here-in-below:

“10. It is due to such circumstances that Chapter X-A had been incorporated in the Delhi High Court (Original Side) Rules, 1967. We are in agreement with the observations in Fashion Linkers' case that something drastic had been required. Therefore this Rule had been incorporated. In our view the opinion expressed in Deepak Kapur's case that the Rule was merely a proviso or an exception to Order 26 of the Code of Civil Procedure is not the correct view. The beginning part of Chapter X-A clearly states that it is to apply "notwithstanding anything contained in Order 26 of the Code of Civil Procedure". This itself makes it clear that while exercising powers under this Rule the Court is not circumscribed by the limits which are laid down under Order 26 of the Code of Civil Procedure. Under this Rule Court can exercise power even for other reasons i.e. reasons/circumstances not set out in Order 26, CPC, if in its discretion it is necessary to do so. However it is also clear that this Rule does not give to the Court an absolute discretion to refer recording of evidence to a Commissioner without there being any reasons whatsoever. Recording of evidence by the Court has to be the normal rule/procedure. Examination of witnesses on commission has to be an exception. The discretion, vested by virtue of this Rule, has to be exercised judicially and for valid reasons. The Court must while exercising power under this Rule record those reasons in writing. It is also clear that while the Court may exercise the power under this Rule, it cannot by virtue of this Rule delegate any judicial powers to the Commissioner. Thus anything which is required to be dealt with judicially can only be done by the Court and cannot be delegated to the Commissioner. Thus for example the power to allow or disallow questions or to decide objections or to decide relevancy cannot be delegated to a Commissioner. The provisions of Order 26, Rule 16-A would continue to apply even though the Court may exercise power under Chapter X-A.

11. In cases where both the parties consent to refer th