Delhi District Court
Sanjay Gupta vs Surte And Another on 4 September, 2013
In the Court of Pawan Kumar Matto: Additional District Judge03 :
East District : Karkardooma Courts : Delhi.
S.no: 76/08/95
IN THE MATTER OF :
Sanjay Gupta ........ Plaintiff
Versus
Surte and another ......... defendants.
O R D E R
1. This order of mine will dispose of the application u/s 151 CPC filed by the plaintiff for recording of evidence through the Local Commissioner under the supervision of the court.
2. Briefly stating, that the plaintiff has filed the suit for specific performance, damages and injunction against the defendants.
3. The plaintiff has also filed an application u/s 151 CPC for recording of evidence through the Local Commissioner under the supervision of the court. It is stated in the application that only plaintiff namely Shri Sanjay Gupta has been cross examined in one case titled as Sanjay Gupta vs Sis Ram and other witnesses are yet to be cross examined. It is further stated that since the matter is quiet old, it will be proper and convenient for the proper adjudication of the case that the evidence of the plaintiff may be recorded by the Local Commissioner under the supervision of the court and the evidence S.no: 76/08/95 Sanjay Gupta vs Surte 1 of 10 may be directed to be concluded within a period of three months from the date of passing of the order and prayed for the appointment of Local Commissioner, to record the evidence.
4. On the other hand, the defendant no. 2 has filed the reply to the said application and stated that the application is an abuse and misuse of process of law, as earlier also, the plaintiff had filed similar application, which was withdrawn on 18.9.2012 and the plaintiff by moving the application is delaying the proceedings of the case. It is further stated that the Local Commissioner can be appointed to record the evidence only in exceptional circumstances and in the present matter, the defendant is not agree for recording of the evidence before the Local Commissioner and further stated that the present matter is a very serious matter, relating to a large tract of land, worth of which is crores of rupees and it would be not proper for the Local Commissioner to record the evidence and prayed for the dismissal of the application.
5. Whereas, the counsel for the Lrs of the defendant no.1 has stated that he does not wish to file any separate reply and he will adopt the reply filed by the counsel for the defendant no.2.
6. I have heard Ld. Counsels for the parties and perused the record.
7. The ld.counsel for the plaintiff has submitted that since the case is very old which was instituted way back in the year 1995 and the evidence could not be recorded and for the expeditious disposal of the case and Local Commissioner may be appointed and the plaintiff is ready to bear the S.no: 76/08/95 Sanjay Gupta vs Surte 2 of 10 expenses of the local commissioner Rs.5000/ per date and as per mendate of order 18 rule 4 of CPC, the Local Commissioner can be appointed for recording of the evidence and the plaintiff will also bear the expenses of the audio recording, if this court orders so. He has relied upon the judgment passed by the Supreme Court of India in case Salem Advocate Bar Association, T.N. vs Union Of India, Bar Association, Batala and others vs UOI (2003)1 SC Cases 49 and Salem Advocate Bar Association, T.N. vs Union Of India (2005) 6 SC Cases 344 and prayed for allowing the application.
8. On the other hand, the ld.counsel for the Lrs of the defendant no.1 has submitted that oldness of the case is not the ground for appointing the local commissioner to record the evidence and if the Local Commissioner is appointed, the demeanour of the witnesses may not come on the record. He has also submitted that without consent of the Lrs of the defendant no.1 the Local Commissioner cannot be appointed and prayed for the dismissal of the application. He has relied upon the judgment passed by their lordship of High Court of Delhi in case titled as Smt Pushpa Devi vs Smt Bimla AIR 2000 Delhi 141.
9. Whereas, Shri Pankaj Vivek, the ld. counsel for Iqbal Singh i.e. defendant no.2 has submitted that no doubt the case is very old, but as the value of the property at present is crores of rupees and Iqbal Singh is in possession of the suit property and he has also submitted that Iqbal Singh had purchased the suit property, so the present application cannot be allowed.
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10.In rebuttle the counsel for the plaintiff has submitted that only for the reason that the value of the suit property has gone in crore, the application of the plaintiff for the appointment of Local Commissioner cannot be dismissed.
11.I have given thoughtful consideration to the submissions made by Ld. Counsels for the parties and perused the record.
12.The perusal of the record shows that the present case was filed in the hon'ble High Court in the year 1995 and in view of increasement of pecuniary jurisdiction of this court, the case was transferred to this court and since the case is very old and the same is running at the stage of plaintiff evidence, so the plaintiff has resorted to file the present application for recording of the evidence through the Local Commissioner and prayed for appointment of Local Commissioner . He has relied upon the judgments passed by the Supreme Court of India in case titled as Salem Advocate Bar Association, T.N. vs Union Of India, Bar Association, Batala and others vs UOI (2003) 1 SC Cases 49 and Salem Advocate Bar Association, T.N. vs Union Of India (2005) 6 SC Cases 344.
13.From the perusal of the judgment relied upon by the ld. counsel for the LRs of the defendant no.1 in case titled as Smt Pushpa Devi vs Smt Bimla AIR 2000 Delhi 141 passed by their lordship of High Court of Delhi, it is clear that the same was passed prior to the amendment done in CPC, so the same is of no help for the Lrs of the defendant no.1.
14.Whereas, their lordship of Supreme Court of India in Salem Advocate Bar Association, T.N. vs Union Of India, Bar Association, Batala and others S.no: 76/08/95 Sanjay Gupta vs Surte 4 of 10 vs UOI (2003) 1 SC Cases 49 is pleased to hold that:
'' Order 18 Rule 4(2) gives the court the power to decide as to whether evidence of a witness shall be taken either by the court or by the Commissioner. An apprehension was raised to the effect that the court has no discretion and once it decides that the evidence will be recorded by the Commissioner then evidence of other witnesses cannot be recorded in court. We do not think that this is the correct interpretation of subrule(2) of Rule 4. Under the said subrule, the court has the power to direct either all the evidence being recorded in court or all the evidence being recorded by the Commissioner or the evidence being recorded partly by the Commissioner partly by the court. For example, if the plaintiff wants to examine 10 witnesses, then the court may direct that in respect of five witnesses evidence will be recorded by the Commissioner while in the case of the other five witnesses evidence will be recorded in court. In this connection,we may refer to Order 18Rule 4 (3) which provides that the evidence may be recorded either in writing or mechanically in the presence of the Judge or the Commissioner. The use of the word ''mechanically'' indicates that the evidenced can be recorded even with the help of the electronic media, audio or audio visual, and in fact whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage.'' S.no: 76/08/95 Sanjay Gupta vs Surte 5 of 10
15.Wheres their Lordship of Supreme Court of Indian in case titled as Salem Advocate Bar Association, T.N. vs Union Of India (2005) 6 SC Cases 344, is pleased to hold that :
'' The amendment provides that in every case, the examination in chief of a witness shall be on affidavit. The court has already been vested with the power to permit affidavits to be filed as evidence as provided in Order 19 Rules 1 and 2 of the Code. It has to be kept in view that the right of cross examination and reexamination in open court has not been disturbed by Order 18 Rule 4 inserted by amendment. It is true that after the amendment crossexamination can be before a Commissioner but we feel that no exception can be taken in regard to the power of the legislature to amend the Code and provide for the examination in chief to be on affidavit or cross examination before a Commissioner. The scope of Order 18 rule 4 has been examined and its validity upheld in Salem Advocate Bar Association case(2003)1 S.C.C.
49. There is also no question of inadmissible documents being read into evidence merely on account of such documents being given exhibit numbers in the affidavit filed by way of the examination in chief. Further, in Salem Advocate Bar Association case(2003)1 S.C.C.49 has been held that the trial court in appropriate cases can permit the examination in chief to be recorded in court. Proviso, to sub rule(2) of Rule 4 Order 18 clearly suggest that the court has to apply its mind to the facts of the case, nature of allegations, nature of evidence and importance of the S.no: 76/08/95 Sanjay Gupta vs Surte 6 of 10 particular witness for determining whether the witness shall be examined in court or by the Commissioner appointed by it. The Power under order 18 Rule 4(2) is required to be exercised with great circumspection having regard to the facts and circumstances of the case. It is not necessary to lay down hard and fast rules controlling the discretion of the court to appoint a Commissioner to record the cross examination and re examination of witnesses. The purpose would be served by noticing some illustrative cases which would serve as broad and general guidelines for the exercise of discretion. For instance, a case may involve complex questions of title, complex questions in partition or suits, relating to partnership business or suits involving serious allegations of fraud, forgery, serious disputes as to the execution of Wills, etc. In such cases, as far as possible, the court may prefer to itself record the cross examination of the material witnesses.
Another contention raised is that when evidence is recorded by the Commissioner, the court would be deprived of the benefit of watching the demeanour of witnesses. that may be so, but in our view, the will of the legislature, which has by amending the Code provided for recording evidence by the Commissioner for saving the court's time taken for the said purpose. cannot be defeated merely on the ground that the court would be deprived of watching the demeanour of the witnesses. Further, as noticed above, in some cases, which are complex in nature, the prayer for recording evidence by the Commissioner may be declined S.no: 76/08/95 Sanjay Gupta vs Surte 7 of 10 by the court. It may also be noted that Order 18 rule 4, specifically provides that the Commissioner may record such remarks as it thinks material in respect of the demeanour of any witness while under examination. The court would have the benefit of the observations if made by the Commissioner.''
16.From the perusal of the judgments passed by their lordship of Supreme Court of India in cases Salem Advocate Bar Association, T.N. vs Union Of India, Bar Association, Batala and others vs UOI (2003) 1 SC Cases 49 and Salem Advocate Bar Association, T.N. vs Union Of India (2005) 6 SC Cases 344, it is clear that, as per provisions of order 18 rule 4(3) of CPC, this court is competent to appoint the Local Commissioner for recording of the evidence.
17.Since at the time of the argument on the application, the ld.counsel for the plaintiff has proposed the name of Shri Vishwajeet Mangla, advocate, as Local Commissioner, who was present in this court in some other case and this court has also asked to the counsels for the defendants, as to whether they have any objection regarding same advocate. They have submitted that they leaves on the court. Accordingly, Shri Vishwajeet Mangla, advocate, is appointed as the Local Commissioner and he is directed to record the evidence of the plaintiff between 3.00 p.m. to 5.00 p.m in this court room and the objections to be raised by the party will be decided by this court. Since the ld. counsel for the plaintiff has also offered to pay Rs. 5000/ per date to the Local Commissioner for recording of the evidence, so the fees of the S.no: 76/08/95 Sanjay Gupta vs Surte 8 of 10 Local Commissioner is assessed Rs. 5000/ per date on which the evidence will be recorded and the same shall be paid by the plaintiff and the ahalmad of this court is also directed to remain present alongwith the file for recording of the evidence by the Local Commissioner and the plaintiff is also directed to pay Rs. 400/ as diet money to the ahalmad for each date, on which the evidence will be recorded. The evidence by the Local Commissioner may be recorded in writing or mechanically in this court room and this evidence may be recorded with the electronic gadgets and the same shall be signed by the Local Commissioner. In order to avoid any controversy, the audio recording of the testimony of the witness is also ordered to be done by the Local Commissioner simultaneously. The electronic gadgets for the same will be arranged by the plaintiff and the evidence of the plaintiff shall be concluded within 3 months from the date of the order.
18.The ld.counsel for the Lrs of the defendant no.1 has submitted that the Local Commissioner cannot be appointed without the consent of the Lrs of the defendant no.1 and the demeanour of the witnesses would remain unknown to the court. Whereas, the counsel for the defendant no.2 namely Iqbal Singh has submitted that the worth value of the suit property is in crores, so the Local Commissioner cannot be appointed for the recording of the evidence. But, I do not find any force in such submissions of the ld.counsel for the defendants because the legislature has made the law and this court has to enforce the law in it's letter and spirit. The legislature has enacted the provision of order 18 rule (4) of CPC to expedite the adjudication S.no: 76/08/95 Sanjay Gupta vs Surte 9 of 10 and their lordship of Supreme Court of India in cases titled as Salem Advocate Bar Association, T.N. vs Union Of India (2005) 6 SC Cases 344 is pleased to hold that the the will of the legislature cannot be defeated and the Commissioner may record the remarks as it thinks material in respect of demeanour of any witness, while under examination.
19.Since the case is very old, in view of the above discussion, to expedite the proceedings and in the interest of justice, the application filed by the plaintiff stands allowed. The notice to the Local Commissioner is ordered to be issued for intimating him about his appointment as Local Commissioner. The matter stands adjourned for the evidence of the plaintiff. To come up on 10.9.2013 at 3.00 p.m. Announced in the open Court on:04.09.2013.
( Pawan Kumar Matto )
Additional District Judge03
(East)/KKD/Delhi
S.no: 76/08/95 Sanjay Gupta vs Surte 10 of 10
S.no: 76/08/95 Sanjay Gupta vs Surte 11 of 10