Delhi High Court
Pushpa Devi vs Smt. Bimla Devi & Others on 14 December, 1999
Equivalent citations: AIR2000DELHI141, 2000(52)DRJ437
Author: S.N. Variava
Bench: S.N. Variava, S.K. Mahajan, Mukul Mudgal
ORDER S.N. Variava, C.J.
1. The question which has been referred for consideration of the Full Bench is : "Whether or not the entire evidence in a suit can be referred to a Commissioner even without consent and even in cases where the Suit is not very old and there is no grave urgency or peculiar circumstance requiring such a course to be followed".
This question was referred to the Full Bench because it was found that using Chapter X-A of the Delhi High Court (Original Side) Rules, 1967 some Courts were referring the entire evidence in suits to Local Commissioners even without the consent of parties and even though the matters were not very old and/or there were no special circumstances requiring such a course to be followed.
2. Chapter X-A reads as follows :
"Evidence on Commission at Court's Discretion Commission to examine parties & Witnesses :- Notwithstanding anything contained in Order XXVI of the Code of Civil Procedure 1908, the Court may, at its discretion, in any suit, at any stage, direct that the parties and witnesses be examined on Commission. The evidence recorded on Commission shall be read as evidence in the suit."
3. At this stage itself it must be clarified that this Court is merely considering the question which has been referred to it. This Court dealing with the merits of the Appeal or the question raised by Respondent No. 9 regarding maintainability of the Appeal. Mr Kapur has fairly stated that he is arguing the pure question of law which has been referred to this Full Bench without prejudice to the contention that the Appeal is not maintain- able.
4. The interpretation of Chapter X-A of the Delhi High Court (Original Side) Rules, 1967 vis-a-vis Order 26 of the Code of Civil Procedure came to be considered by a Division Bench of this Court in the case of Deepak Kapur Vs. Ashok K Ghose & Ors., . In this case the Division Bench held that Chapter X-A was merely an exception or a proviso to the power of the Court under Order 26 of the Code of Civil Procedure. It was held that it is not a provision permitting a "wholesale" delegation of the Court's function to examine parties and witnesses in suits. In coming to this conclusion the Court took into consideration following aspects : (a) that Chapter X-A did not provide the circumstances under which a Com- mission could be appointed. b) the fact that under Order 26 of the Code of Civil Procedure the Court could not appoint a Commissioner to examine witnesses except under certain circumstances. (c) the fact that under Order 26 Rule 16-A the Commissioner had no power to overrule any objection to a question put to the witness and that a power to overrule the question and strike off an answer was a judicial power which could not be delegated to a Commissioner. It was held that it was for the Court, which was seized of the lis between the parties, to examine the material before it and decide whether or not a particular place of evidence was one which could be legal- ly looked at. (d) the Court also took into account Section 165 of the Evidence Act which enabled the Judge to ask any question to any witness or obtain documents or proof of relevant facts. The Division Bench observed that if all the witnesses were examined on commission it would not always be possible for the Court to exercise these powers always. (e) the fact that the atmosphere in the Court generally acts as a deterrent against the witness deposing falsely and that the demeanour of the witness could be watched and scrutinised by the Judge in a better way than the Commissioner. It was accordingly held that examination of parties and witnesses in the Court should be considered to be the normal rule and only under exceptional circumstances a departure should be made from the rule. It was held that if a Court directs that all parties and all witnesses in the suit should be examined on commission then there should be extraordinary circumstances to justify the exercise of such discretion. It was held that a likely delay in disposal of the suit had become a common feature in the Court and if delay was to be used as a ground to examine witness on commission then this procedure would have to be adopted in every suit.
5. It would appear that this Judgment was followed in another case. In that case a Special Leave Petition had been filed. Whilst disposing of that Special Leave Petition the Supreme Court observed as follows :
"Keeping in view the facts of this case we do not find any ground to interfere with the order of the High Court. The Special Leave Petition is, therefore, dismissed. The question of law raised by the Petitioner in the Special Leave Petition is left open."
6. The question of the scope of Chapter X-A again arose for consideration in the case of Fashion Linkers & Others Vs. Savitri Devi & Anr., reported in 1995 (34) DRJ 672. In view of the above-mentioned observations made by the Supreme Court the Division Bench felt that the question was left open for them to decide. The Division Bench, inter alia, raised the following three questions :
"2. Whether the Rule in Chapter XA of the Delhi High Court (Original Side) Rules, inserted in 1991 is to be treated only as a proviso or exception to Order 26?
3. What is the scope of the Rule in Chapter CA?
4. What are the safeguards to be followed so that the appointment of Local Commissioner under the Rule can subserve the real pur- pose?
The Division Bench agreed with the view in Deepak Kapur's case that under Chapter X-A a Commissioner could not be appointed without recording any reasons. The Division Bench held that the word "may" in the Rule shows that it was not an absolute discretion to appoint a Commissioner without any reasons. The Division Bench held that in appointing a Commissioner reasons had to be given unless the matter was referred to the Commissioner by consent of parties. The Division Bench also opined that judicial func- tions could not be delegated to the Commissioner and thus the Commissioner could not be vested with powers which were judicial, like rejecting any questions or answers or deciding the admissibility of documents. The Divi- sion Bench held that the Commissioner appointed under Chapter X-A had to follow a procedure similar to the one indicated in Order 26 Rule 16-A of the Code of Civil Procedure. The Division Bench noted that Chapter X-A had been introduced in the Delhi High Court (Original Side) Rules, 1967 as the time of the Court was taken up in doing interlocutory and other miscellane- ous work and that more and more interim applications were being filed which ultimately resulted in a tremendous stagnation of trial of suits. The Division Bench held that as the suits were not being taken up some method had to be found to clear the backlog of suits and therefore some redical provision had to be made. The Division Bench noted the fact that more and more people were using laws delays in order to defeat just rights and claims. The Division Bench opined that to meet this situation in 1991 Chapter X-A was introduced in the Delhi High Court (Original Side) Rules, 1967. The Division Bench held that this Rule had a definite purpose and therefore it could not be treated as a proviso or an exception to Order 26 CPC. The Division Bench held that the Court could invoke this Rule if both the parties agreed to have the witnesses examined on commission. They held that this Rule could be invoked by consent even where the suit was not old. The Division Bench further held that if the suit was quite old and had been languishing without trial and if the Court appointed a Local Commissioner then that by itself should be treated as the Court having exercised juris- diction properly within the intendment of the Rule. The Division Bench held that in matters where the suit was not old or the parties did not consent then the Rule could be invoked if there was a grave urgency in the matter of if there were a large number of witnesses to be examined. The Division Bench further held that the Court must record reasons for appointment whenever the appointment is not by consent. Thereafter the Division Bench laid down certain safeguards which require to be set out are set out later in this judgment.
7. Thus it is to be seen that the two Division Benches have taken two different views. In Deepak Kapur's case (supra) it was held that Chapter X- A was merely a proviso or an exception to Order 26 CPC and that delay by itself was not a ground to invoke Chapter X-A. In Fashion Linkers' case (supra) the Division Bench did not agree with that view and held that Chapter X-A was not a proviso or exception to Order 26 CPV and that a matter being old and languishing could by itself be a ground for referring evidence to the Commissioner.
8. At this stage it must be mentioned that the question set out at the beginning of this Order was first referred to a Full Bench in FAO No 164/99. At the time that the reference was being made an impression was given to Court that in another Judgment of a Division Bench of this Court i.e. in the case of B. N. Mullick & Ors Vs. Sita Ram Mullick & Ors. report- ed in 1999 Apex Decisions (Delhi) 109 it had been held that Chapter X-A permitted referring to evidence to a Commissioner even without the consent of the parties. We have now read that decision. We find that there is no such observation in that case at all. In B. N. Mullick's case the Court proceeds on the footing that the Judgment in Deepak Kapur's case is correct. The Court accepts the proposition that the discretion, under Chapter X-A, was to be exercised on sound judicial principles. The Court accepts the proposition that an order directing recording of evidence is to be an exception and not the rule. The Court however did not agree with a submis- sion, which had been made, that in every case delay by itself could not be a ground to make such an Order. The Court held that whether or not such an order could be passed would depend on the facts of each case. It must be mentioned that the judgment in Fashion Linkers's case was also pointed out to this Division Bench. However this Division Bench chose not to go into the controversy as they proceeded on the basis that Deepak Kapur's case correctly laid down the law.
9. Before us all parties have taken a very reasonable stand. Nobody has overstated their points of view. Except for minor differences of opinion it is not seriously disputed, by anybody, that the ratio laid down in Fashion Linkers' case is the more correct one. Having heard the parties and read the Judgments and the provisions of law we are of the view that there can be no dispute with the proposition that the atmosphere in a Court will generally act as a deterrent against a witness deposing falsehood and that it is important that the demean our of a witness be watched and scrutinised by a Judge. However said as it may seem the reality today is that Suits do not reach hearing for a large number of years. Very often the Judge record- ing evidence is not the Judge who finally disposes off the matter. Delay therefore defeats justice. As was seen in B N Mullick's case Parties who were family relations were litigating for over 15 years. The parties had become quite old. The father of the parties had, during the pendency of the suit, died at the age of 97. One of the plaintiffs had died a few days after the Order directing recording of evidence on Commission. Two other parties had died during the pendency of the Appeal and that in all these years it had not been possible for the Court to record evidence at all.
10. It is due to such circumstances that Chapter X-A had been incorporated in the Delhi High Court (Original Side) Rules, 1967. We are in agreement with the observations in Fashion Linkers' case that something drastic had been required. Therefore this Rule had been incorporated. In our view the opinion express in Deepak Kapur's case that the Rule was merely a proviso or an exception to Order 26 of the Code of Civil Procedure is not the correct view. The beginning part of Chapter X-A clearly states that it is to apply "notwithstanding anything contained in Order 26 of the Code of Civil Procedure". This itself makes it clear that while exercising powers under this Rule the Court is not circumscribed by the limits which are laid down under Order 26 of the Code of Civil Procedure. Under this Rule Court can exercise power even for other reasons i.e. reasons/circumstances not set out in Order 26 CPC, if in its discretion it is necessary to do so. However it is also clear that this Rule does not give to the Court an absolute discretion to refer recording of evidence to a Commissioner with- out there being any reasons whatsoever. Recording of evidence by the Court has to be the normal rule/procedure. Examination of witnesses on commission has to be an exception. The discretion, vested by virtue of this Rule, has to be exercised judicially and for valid reasons. The Court must while exercising power under this Rule record those reasons in writing. It is also clear that while the Court may exercise the power under this Rule, it cannot by virtue of this Rule delegate any judicial powers to the Commis- sioner. Thus anything which is required to be dealt with judicially can only be done by the Court and cannot be delegated to the Commissioner. Thus for example the power to allow or disallow questions or to decide objec- tions or to decided relevancy cannot be delegated to a Commissioner. The provisions of Order 26 Rule 16-A would continue to apply even though the Court may exercise power under Chapter X-A.
11. In cases where both the parties, consent to refer the entire or part of the evidence to a Commissioner then unless there is some very strong reasons to rule otherwise, the Court should normally act on such consent. By consent of parties recording of evidence by the Commissioner can be directed even though the case may not be very old and there may be no other circumstances justifying it.
12. However where the parties do not or a party does not so consent then the discretion must be exercised judicially and for valid reasons. The mere fact that the matter is old and/or languishing would not by itself, be a ground justifying referring the recording of evidence to a Commissioner. A matter being old and/or languishing would be a strong ground for the Court to refuse adjournments and take up trial immediately. Thus for referring, without consent, the recording of evidence to a Commissioner the factum of the case being old must be coupled with other circumstances or reasons justifying such a course being followed. To give some examples the parties being very old if there is some cogent reasons why the Court cannot take up trial in the near future or if there is a grave urgency to have the evi- dence recorded due to possibility of evidence being lost and/or not avail- able or if there are a large number of witnesses, the Court could exercise powers under Chapter X-A. Clarified that the examples given are merely illustrative and not exhaustive.
13. As had been set out hereinabove one of the grounds on which the learned Judges, in Deepak Kapur's case held that Chapter X-A was merely a proviso and an exception was that if recording of evidence by a Commission- er was permitted then the provisions of Section 165 of the Evidence Act would become negatory. In our view the provisions of Section 165 of the Evidence Act would not become negatory. They would continue to apply. There is nothing is Chapter X-A of the Delhi High Court (Original Side) Rules, 1967 or in Order 26 of the Code of Civil Procedure which prevents or restricts the power of the Court to ask any questions. If necessary, for that purpose the witnesses can be recalled. The Court can always direct produc- tion of evidence or documents at any time. In this behalf it must be men- tioned that Rule 16 of Order 26 of the Code of Civil Procedure also permits the Commissioner to call for records and documents and to examine any person.
14. Merely because the Court is exercising power, not under Order 26 CPC, but under Chapter X-A would not mean that the procedure laid down under Order 26 CPC has been given a go-bye and/or that it would not apply. The procedural aspects would continue to apply even in cases where Orders are passed by the Court under Chapter X-A.
15. Before parting it must be mentioned that we are in full agreement with the view expressed in Fashion Linkers' case that in each case where a Commissioner is appointed the Court must provide certain safeguards in the Order directing recording of evidence by the Commissioner. In our view, it would be appropriate to reproduce the relevant portion of the Judgment in Fashion Linkers' case. The relevant portion read as follows :
"23. In each of these types of cases, when a Commissioner is appointed, the Court must take care to fix definite time limits for completion of evidence so that the parties do not exploit the situation by taking easy adjournments before the Local Commis- sioner or by raising unjustifiable objections and so that they do not also harass the party out of possession or the one who is seeking a decree for money. The parties cannot also be allowed to harass the Local Commissioner by raising objections after objec- tions to delay the evidence. The new solution cannot be allowed to be abused nor become more disadvantageous or illusory. The Court must, by implication, therefore, keep track of what is happening before the Local Commissioner. We have, enough experience as to how arbitrations have become protracted for longer periods than suits. The same should not happen to the Commission- ers acting under this Rule in Chapter X A. Otherwise the very purpose of the Rule will be defeated.
24. Where the Court appoints a Local Commissioner under Chapter XA, we feel that the Court may take care to direct in the very order appointing the Local Commissioner that at regular intervals of three months or so as the Court may deem fit, the suit be listed before Court for monitoring the progress of the evidence before the Local Commissioner. The court would then be able to sort out the problems and if it finds any party obstructing the evidence unreasonably, the Court could consider awarding costs. If the Court finds the parties eager and the Commissioner not active or is having other good causes for not completing his work, like ill-health etc., the Court can consider whether change of the Commissioner is necessary. We are making these observa- tions because it has come to our notice that in some cases where Local Commissioners are appointed, parties or the Local Commissioners take it easy for years and the Court has no information at all as to what is happening before the Commissioner, till it has become too late to mend the situation.
25. There are certain practical aspects which have to be taken care of. If Local Commissioners are to be appointed in too many cases, will the High Court, with its limited staff, be able to cope up with the problem of sending its officers to assist the Local Commissioner in keeping and maintaining the Court record? If the original documents filed by the parties are to be taken out of the Court and entrusted to Court employees or Advocate Commissioner, can the records, in every case, be kept safe or is there any serious risk of losing the documents or these being tampered with? Should photo copies of one set of documents which are taken out of Court, be kept in the Court under signatures of Counsel/parties on both sides? Should the venue of recording evidence in at least some or all cases be the High Court itself? Should Commissioner give an undertaking that they will keep the Court records safe?
26. These are important practical aspects regarding which - in today's atmosphere - the learned Judges appointing Local Commissioners will, we are sure, take adequate care, before appointing Local Commissioners under the rules.
27. If these safeguards and other safeguards which the Court may deem fit - such as asking the Commissioner, who is at fault and who has done no work, to pay back any fee he might have received - are employed, the Court can, in our view, achieve the purposes for which this Rule has been inserted in 1991 in the Original Side Rules. By referring to the need for the monitoring and to the need for passing incidental orders, as stated above, we are not to be understood as interfering with judicial discretion that may be exercised in individual cases. The spirit in which we are stating that such a procedure may be adopted is indeed the spirit implicit in the Rule itself. We are sure our observations will be appreciated in their proper light."
16. We may only add that if in a case the learned Judge feels that some other procedural aspect or safeguard is required to be provided the learned Judge will always be at liberty to so provide.
17. Lastly, even though it is not necessary it must be mentioned that this Order would not make void any Orders, already passed, referring recording of evidence to Commissioners under Chapter X-A nor the evidence already recorded pursuant to such orders. Of course if an Appeal is pending against such an Order, then the Appeal will be disposed off in accordance with law.
18. The Reference stands answered accordingly. This Appeal is referred back to the Division Bench for decision on merits in accordance with law. List on 17th January, 2000 before the Division Bench for admission.