Chitambaresh, J.

1.“It has been laid down again and again that one should be very careful before permitting the issue of a commission which will deprive the other side of the great advantage of having a witness cross-examined before the face of the Court itself.”

observed Odgers J. in Sreenivasa Aiyyangar v. Ranga Aiyangar (AIR 1927 Madras 524). The above observation still holds good in marital disputes before a Family Court.

2. The petitioner and respondent are wife and husband between whom cases are pending on the file of the Family Court, Chavara the details of which are as follows:

i. O.P.No.259/2014 filed by the wife for return of the gold ornaments and for realisation of money.

ii. O.P.No.280/2014 filed by the husband for prohibitory injunction against alienating the property.

iii. O.P.No.476/2014 filed by the wife seeking custody of the children born in the wedlock.

The Family Court has ordered joint trial of the cases and also appointed an Advocate Commissioner to record evidence of the witnesses as contemplated under the provisions of the Code of Civil Procedure, 1908 ('CPC' for short). The petitioner thereupon filed I.A.No.1046/2017 for permission to adduce oral evidence before the Court itself than having it recorded by an Advocate Commissioner. The Family Court has turned down the request and dismissed the interlocutory application which order is impugned in this original petition invoking the supervisory jurisdiction.

3. The petitioner contends that the provisions of the CPC shall apply to the suits and proceedings before a Family Court only subject to the provisions of the Family Courts Act, 1984 ('the Act' for short). It is the prerogative of the Judge and the Judge alone of the Family Court to record a memorandum of the substance of what the witness deposes which cannot be exercised by an Advocate Commissioner. The petitioner adds that sensitive issues crop up in marital disputes and that an Advocate Commissioner shall not be appointed to record evidence in every case. The petitioner submits that the power to record evidence in the instant case ought not to have been delegated to the Advocate Commissioner in the wake of her vehement objection for the same.

4. The respondent contends that the evidence of the parties can be taken either by the Court or by the Advocate Commissioner appointed for which there is an element of discretion vested in the Court. The Advocate Commissioner is even empowered to put it on record his remark about the demeanor of the witnesses during examination which shall be decided by the Court at the time of hearing. The enabling provisions have been brought into the statute book by the amendment of CPC by Act 46 of 1999 (with effect from 1.7.2002) as approved by the Supreme Court. The respondent defends the original petition by reiterating that speedy justice envisaged by the amended provisions of the CPC is being thwarted by the petitioner.

5. We heard Mr. Sam Isaac Pothiyil, Advocate on behalf of the petitioner and Mr. B.Krishnamani, Advocate on behalf of the respondent as well as Mr. R.T.Pradeep, Advocate as amicus curiae in the case.

6. Rule 4 of Order XVIII and Rule 4-A of Order XXVI of the CPC inserted by Act 46 of 1999 (with effect from 1.7.2002) enable the Court to issue commission in any suit or proceedings for the examination of witnesses. The legality of the amendment to the CPC has been upheld in Salem Advocate Bar Association's cases reported in (2003) 1 SCC 49 and (2005) 6 SCC 344. Either all the evidence can be recorded in Court or by the Advocate Commissioner or partly by the Court and partly by the Advocate Commissioner as the Court directs. The Court has to apply its mind to the facts, nature of allegations, nature of evidence and importance of the particular witness in order to determine as to how the examination should proceed. The power is to be exercised with great circumspection and no hard and fast rule has been laid down to control the discretion of the Court to ap