The power to issue a commission for recording evidence is discretionary and should be exercised cautiously and sparingly, especially when the party to the litigation claims to be examined by a commission.

JUDGMENT

(Prayer: Original Side Appeal filed under Clause 15 of the Letters Patent read with Order XXXVI Rule 1 and 9 of the Original Side Rules, praying to set aside the fair and decreetal order passed by the learned Judge in A.No.5731 of 2023 in C.S.No.82 of 2019 dated 07.11.2023.)

R. Mahadevan, J .

1. Heard the learned senior counsel appearing for the appellant as well as the first respondent herein and also perused the materials available on record.

2. The first respondent / plaintiff is the former Chief Minister of the State of Tamil Nadu and presently, the leader of Opposition party. In connection with a defamatory video pertaining to the criminal trespass, murder and robbery that occurred in the Kodanadu Estate belonging to the erstwhile Chief Minister of Tamil Nadu and former leader of the first respondent's political party, late Selvi J.Jayalalithaa in 2017, and the suspicious death of people, particularly, Mr.Kanakaraj, an accused, supposedly involved in the said crime, uploaded in the Youtube and in the social media, he had preferred a suit in O.S. No. 82 of 2019, against the appellant and respondents 2 to 7 herein / defendants 1 to 7 for the following reliefs:

“(i) Directing the defendants jointly and severally to make payment of a sum of Rs.1,10,00,000/- towards damages caused to the plaintiff by uploading of the Video in the YouTube and in the Social Media which is filed as Document Nos.1 to 3 along with plaint;

(ii) Permanent injunction restraining the defendants, their men, agents, servants, person or persons acting through or under them or on their behalf from in any manner whatsoever releasing, circulating, publishing any video clippings or articles and/or give press interviews and/or post any items, messages on social media containing any allegation as found or resembling to the one in the document Nos.1 to 3 filed along with the plaint;

(iii) Cost of the suit.”

3. A perusal of the records would reveal that by order dated 30.03.2021, issues were framed and the suit was directed to be posted before the learned Master for recording evidence. Accordingly, the case was posted before the learned Additional Master -I on 30.04.2021 for recording the evidence of the first respondent herein. But, the first respondent did not appear for recording evidence. After two years, without recording the evidence of the first respondent, the learned Master by order dated 21.07.2023, directed the suit to be posted before the learned Judge.

4. While so, the first respondent has taken out an application in A.No.5731 of 2023 in CS No. 82 of 2019 seeking to appoint an Advocate as Commissioner for recording his evidence. The learned Judge allowed the said application, by order dated 07.11.2023, the relevant passage of which is profitably extracted below:

“6. I have perused the entire materials. Without going into the merits of the case, it is relevant to note that Order XVIII Rule 4 and Order XXVI Rule 4A of Code of Civil Procedure were amended by Act 22 of 2002 and Act 46 of 1999 respectively, w.e.f. 01-07-2002, wherein, the evidence of the witness can be examined by the Commissioner also. The Commissioner also, while recording the evidence, may record such remarks including the demeanour of the witness.

7. Therefore, the apprehension of the learned Senior Counsel for the first respondent that the Commissioner cannot make a remark and note down the demeanour of the witnesses has no legs to stand. Once, the Commissioner is appointed by the Court to record the evidences, he is entitled to record such remarks as to the demeanour of the witness or the parties during such proceedings.

8. Such view of the matter, the apprehension of the learned Senior Counsel for the first respondent that sensitive questions cannot be asked while examining the parties during the Commission cannot be countenanced.

9. Even during the cross examination, the parties are at