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IN THE HIGH COURT OF DELHI AT NEW DELHI
Manmohan, Manmeet Pritam Singh Arora, JJ.
Kamal Kant Rachhoya - Appellant
Versus
Manish Rachhoya - Respondent
FAO(OS) 15 of 2024 & C.M. Nos. 5540-5541 of 2024
Decided On : 31-01-2024
Local Commissioner - Appointment of Local Commissioner - The court dismissed the appeal challenging the appointment of a Local Commissioner based on the Delhi High Court (Original Side) Rules, 2018, which provides for the appointment of Registrars and Commissioners to record evidence. The court distinguished a previous judgment and emphasized the impact of the Rules, 2018 in reaching its decision.
Fact of the Case:
The appeal was filed to challenge the appointment of a Local Commissioner in a case where the respondent's application for the appointment was allowed by the learned Single Judge.
Finding of the Court:
The court dismissed the appeal, stating that the submission of the appellant's counsel was contrary to the Delhi High Court (Original Side) Rules, 2018, which provides for the appointment of Registrars and Commissioners to record evidence. The court also distinguished a previous judgment and emphasized the impact of the Rules, 2018 in reaching its decision.
Issues: The issue revolved around the appointment of a Local Commissioner and the interpretation of the Delhi High Court (Original Side) Rules, 2018 in relation to such appointments.
Ratio Decidendi: The court's decision was based on the interpretation of the Delhi High Court (Original Side) Rules, 2018, and the distinction made with a previous judgment pertaining to the appointment of a Local Commissioner.
Final Decision: The present appeal along with the applications was dismissed by the court.
JUDGMENT
Manmohan, A.C.J. (Oral) - Present appeal has been filed challenging the impugned order dated 19th January, 2024 passed by the learned Single Judge in I.A. No.18612/2023 in CS(OS) No.568/2021, whereby the respondent's application under Order XXVI Rule 2 CPC for appointment of Local Commissioner to record evidence of the parties was allowed and a former District & Sessions Judge was appointed as the Local Commissioner.
2. Learned counsel for the appellant states that the learned Single Judge failed to appreciate the law laid down in the case of Nikhil Gupta vs. Tanu Gupta, 2022 SCC Online (Del) 1919, whereby it was held that the power to appoint a Local Commissioner has to be exercised carefully, and in a case where there is opposition to such appointment by any party, then the Courts should abstain from exercising such power in light of the potential difficulties that a Local Commissioner might face. He further states that no party can claim appointment of a Local Commissioner, as a matter of right.
3. This Court is of the view that the submission of learned counsel for the appellant is contrary to the Delhi High Court (Original Side) Rules, 2018 (hereinafter referred to as the `Rules, 2018'), which provides that this Court shall appoint Registrars and Commissioners to record evidence. [See: Chapter XI Rule-1(ii) of Rules, 2018].
4. The judgement in the case of Nikhil Gupta vs. Tanu Gupta (supra) is clearly distinguishable as it pertains to a suit pending before the Trial Court and not this Court. Consequently, the effect and impact of the Rules, 2018 has not been taken into account in the said judgment.
5. Accordingly, the present appeal along with the applications is dismissed.
An order refusing to appoint a local commissioner does not decide any issues or rights in a suit and is therefore non-revisable.
The main legal point established in the judgment is the court's interpretation of the appointment of a Local Commissioner under Order 26 Rule 9 CPC and its exercise of discretion in allowing the appo....
The discretion to appoint a local commissioner rests with the court, and the party must lead evidence to prove ownership and possession over the property.
The appointment of a Local Commissioner for premises inspection can be justified if it is necessary for the adjudication of the case, and the report prepared by the Local Commissioner can facilitate ....
The central legal point established in the judgment is the non-maintainability of the revision petition under Article 227 of the Constitution, as reiterated from the law laid down in Pritam Singh's c....
Local Commissioner cannot be appointed to collect evidence; compliance with prior decree must be demonstrated by the Judgment Debtor.
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