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2025 Supreme(Online)(DEL) 344
HIGH COURT OF DELHI
Ravinder Dudeja, J
YOGESH PARNAMI (HUF) – Appellant
Versus
SK MITTAL – Respondent
CM(M)-278/2025
The appointment of a Local Commissioner for recording evidence must be judiciously exercised and not made routinely, especially when it imposes an undue financial burden on a party.
Headnote:(A) Constitution of India - Article 227 - Appointment of Local Commissioner - Petitioner challenged the order appointing a Local Commissioner for recording evidence, asserting it imposed an unjust financial burden and was unnecessary since the respondent was ex-parte - The court emphasized the importance of assessing witness demeanor during evidence recording and cautioned against routine appointments of Local Commissioners. (Paras 6, 7, 9)
(B) Judicial Process - The court ruled that the trial court should exercise its power to appoint Local Commissioners judiciously and not as a matter of course, especially when both parties prefer in-court proceedings. (Paras 8, 9)
Facts of the case:
The petitioner filed a suit for recovery of Rs. 6,80,000/- and the respondent was ex-parte. The trial court appointed a Local Commissioner without request from the petitioner, leading to additional costs.
Findings of Court:
The impugned order was found to have material irregularities, and the appointment of the Local Commissioner was set aside.
Issues: The court addressed whether the appointment of a Local Commissioner was justified given the circumstances of the case and the objections raised by the petitioner.
Ratio Decidendi: The court held that the trial court's appointment of a Local Commissioner was unwarranted and imposed an undue financial burden, emphasizing the need for in-court recording of evidence.
Result: Petition allowed; orders set aside.
JUDGMENT :
RAVINDER DUDEJA, J.
CM APPL. 8178/2025 (exemption)
Allowed, subject to all just exceptions.
This application stands disposed of.
CM(M) 278/2025 & CM APPL. 8177/2025 (stay)
1. The petition filed under Article 227 of the Constitution of India impugns the order dated 17.12.2024, passed by the learned District Judge (Commercial Court)N-02, North-West District, Rohini Courts, Delhi in Civil Suit (Commercial) bearing CS DJ No. 638/2023 , titled Yogesh Parnami (HUF) Vs. S.K. Mittal .
2. The brief facts are that petitioner filed a Suit for Recovery of Rs. 6,80,000/- with pendent lite and future interest at the rate of 12% per annum till its realization.
3. Respondent was proceeded ex-parte vide order dated 26.10.2024.
4. On 17.12.2024 without request from the petitioner, the learned trial court suo moto, appointed a Local Commissioner for recording of evidence of the petitioner. The fee of the Local Commissioner was fixed as Rs. 5000/- per witness. Further fee of Rs. 1000/- per day was fixed for the Stenographer/Typist, in addition to, Rs. 500/- diet money for the Ahlmad/Nazir/Reader of the court for production of the record.
5. Vide order dated 10.01.2025, taking note of the fact that due to default on the part of the petitioner, evidence could not be recorded before the Local Commissioner, cost of Rs. 5000/- was imposed upon the petitioner for being paid to the Local Commissioner.
6. Learned counsel for the petitioner submits that petitioner never made any request to the trial court for appointing a Local Commissioner and that trial court at its own appointed the Local Commissioner. It is further submitted that petitioner is to examine only 3-5 witnesses. The respondent being ex-parte, it would not have taken much time of the court for examination of the said witnesses. It is further submitted that recording of evidence through Local Commissioner shall impose additional financial burden on the petitioner. In support of his submissions, learned counsel places reliance on the decision of the Single Judge of this Court in M/s. H. Dohil Constructions Co. (P) Ltd. Vs. Rohit Lal & Ors., 2014 SCC OnLine Del 4037 .
7. I have carefully gone through the afore-cited judgment. In the cited case, learned trial court had appointed a Local Commissioner for the purpose of recording of evidence. In the said case while considering the challenge to the appointment of the Local Commissioner for the purpose of recording of the evidence, the learned Single Judge in Para No. 4 & 5 of the judgment observed as under:-
“4. This Court is conscious that during cross examination and re-examination, the demeanour of the witness is required to be appreciated and assessed. While the recording of evidence (cross-examination and re-examination) of the witness in attendance whose evidence (examination-in-chief) by affidavit has been furnished to the Court, is permissible by a Local Commissioner, the Court would not as a matter of routine deny itself the essential aspect of appreciation and assessment of the demeanour of the witnesses during such examination. It would weaken the adjudicatory process. The essential processes and moments which contribute to the formation of adjudicatory opinion cannot always be delegated to a Local Commissioner. A mere ministerial recording of evidence could well be the objective for permitting recording of evidence through Local Commissioner, provided such appointment is occasioned and warranted in the select circumstances contemplated in the statute. However, the Courts would be cautious in delegating such essential aspects of the trial to a Local Commissioner which extends to the formation of a view, opinion, expression or appreciation of evidence or the demeanour of witness which would form the very basis of the adjudication. The Courts would justifiably and robustly retain such aspects of the trial exclusively for themselves, so that recording of evidence by Local Commissioners is not resorted to as a matter of routine.
5. This Court
