M. JAGANNADBA RAO, J.
(1) HIS appeal raises a question of appointment of Local Commissioners on the Original Side of this Court for recording evidence of parties and witnesses. It is therefore of considerable importance.
(2) THE suit in this case was Filed by the respondent in 1988 for possession of an industrial area premises, for mandatory direction and for recovery of Rs. 7,99,500. 00 By consent of parties, an order dated 8. 7. 1992, was passed by a learned Single Judge of this Court appointing Shri J. R. Sharma, Joint Registrar of this Court, as Local Commissioner, for recording of evidence on commission. In fact, part of the evidence was earlier recorded in Court and after the Local Commissioner was appointed, he examined PWs 3 and 4 and the complete evidence of the defendant. Subsequently, a bank officer was to be examined as per order of the Court dated 9. 7. 92. There was a specific direction to the Commissioner not to disallow any question but leave it to the Court to decide whether the question/answer could be taken on record. The admissibility there of was to be determined by the Court at the time of hearing of arguments.
(3) AFTER the Local Commissioner was thus appointed by consent and evidence was also recorded, during the last three years, the defendant appellant did not raise any objection but then filed IA 3671/95 for a declaration that the evidence recorded by the Local Commissioner is neither sustainable nor tenable. Reliance was placed on the Division Bench judgment in Sh. Deepok Kapur vs. Ashok K. Ghose and Ors (1994) (30) DRJ 489 (DB) to contend that the order appointing Commissioner was void and consent could not confer jurisdiction on Court. The learned trial Judge after staling that the Commissioner was appointed by consent, that the Court had rightly exercised discretion in appointing a Commissioner under Chapter X-A of the Original Side Rules, and staling that the appointment did not violate even the principles laid down in Deepak Kapur's case, dismissed the IA. This is an appeal by the defendant against that order.
(4) DURING the course of the hearing before us we pointed out to the learned counsel for the appellant that the Division Bench in Deepak Kapur's case had given a very restricted scope for this Rule in Chapter X-A of the Delhi High Court (Original Side) Rules not withstanding the non-obstante clause and that the Supreme Court had, in an appeal against the connected case (FAO 64/94) where the Judgment in Deepak Kapur's case FAO 63/94 was followed, left the question open.
(5) WE may now refer to the order dated 24. 10. 94 passed by the Supreme Court in SLP (Civil) 17238, 17239/94 (against judgment in RA 15/94 in FAO (OS) 64/94 and RA 14/94 in FAO 63/94 dated 13. 5. 94) (K. Ghosh vs. Rotary International and others). It reads:
"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) IN Deepak Kapur's case, the learned Single Judge had appointed the Local Commissioner for recording evidence "with a power to the Commissioner to disallow questions which did not arise from the pleadings of the parties or the issues. " On appeal, the Bench initially applied only Order 26, Code of Civil Procedure, and held that the order of the learned Single Judge was bad and allowed the appeal. On a review application, the Court allowed the same and reconsidered the matter in the light of the new Rule in Chapter XA of the Delhi High Court (Original Side) Rule brought into force in 1991. That rule, it was noticed, was very wide in so far as Commissioner's appointment was concerned. The Division Bench held that, notwithstanding the obstante clause in the Rule and the apparent width of the Rule, the discretion to appoint a Commissioner was to be limited because of various considerations viz. a Commissioner could not be appointed merely because it was convenient for the Court to do so but the Court has to give reasons, even though, the new Rule did not expressly say so; the Court could not also delegate its judicial power to the Commissioner to overrule questions/answers merely because of the non-obstante clause; essential judicial functions could never be delegated by any rule. In the result, they held that the power under the Rule is, by implication, to be limited to certain exceptional or emergent situations. and has: "to be read as an exceptional power to be exercised is rare cases. There may be several unforeseen circumstances in which a strict adherence to the provisions of Order XXVI of the Code of Civil Procedure may create difficulties in getting a witness to depose before the Court. Similarly, at a particular stage of the suit, a situation may crop up that a particular party or a witness shall have to be examined and such an examination in the Court may be found not possible immediately. One of the situations is that a party or a witness, due to security reasons can not be brought to the Court at all; in another case, where the suit is taken up for arguments, it is realised that a witness shall have to be examined immediately and such an examination in the Court may cause further delay or may come in the way of the Court to go on with an urgent suit.
(7) THE Bench then observed:
"it is difficult to make an advance Catalogue of the circumstances, in which this power could be exercised. Each case shall have to be examined whether it requires a departure from the normal rules provided under Order XXVI of the Code of Civil Procedure. "
(8) ACCORDING to the Bench, therefore , the non-obstante clause in the Rule in Chapter XA has, by implication, to be treated "as a proviso or as an exception to the power of the Court under Order 26 Code of Civil Procedure. It is not a provision permitting a 'wholesale' delegation of Court's function to examine the parties and witnesses in a suit. "
(9) NOW that this decision of 'the Bench has been left open' by the Supreme Court, the question is what is its effect? No doubt, the Supreme Court felt that, on the facts of the case before them, the Bench had done the right thing. But still the Supreme Court left the question open and hence this Court, in our view, can re-examine the matter. Deepak Kapur's case is no longer a binding precedent. On facts, that case related to the validity of an election to the post of District Governor to the Rotary International held on 9. 2. 92 and the suit was filed to set aside the same and the Court appointed a Commissioner - with power to disallow questions, as stated earlier. A Local Commissioner was appointed on 4. 3. 94 by the Court on the sole ground that the term of the Governor was about to expire on 30. 6. 94. The Supreme Court felt that, on facts, the Division Bench was right in setting aside the appointment of the Local Commissioner. It will be noticed that in that case, the learned Single Judge had delegated judicial powers also to the Commissioner. Therefore, the Supreme Court approved the setting aside of that order. But so far as the scope of the Rule in Chapter XA was concerned, the Supreme Court left it open. We shall now refer to the points that arise in the appeal.
(10) THE Points that arise in the appeal are as follows: 1. Whether the contentions raised in this appeal to say that the order of appointment of Commissioner is void, are correct? 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. XA? 4. What are the safeguards to be followed so that the appointment of Locul commissioner under the Rule can subserve the real purpose? Point 1
(11) THE submission that the appointment of the Local Commissioner in the case before us though by consent cannot be treated to be by consent has to be rejected. The contention is that when a suggestion comes from the Court, parties/counsel feel bound to accept it and that therefore there was no real consent. This contention cannot be accepted. Parties and counsel must be taken to have voluntarily offered or agreed for such appointment on 8. 7,92. In fact, there was no demur for 3 years and witnesses were examined before the Commissioner, till this IA was filed in 1995 to declare the evidence as obtained without jurisdiction. The Commissioner had not only examirfed PWs 3 and 4 but also the appellant-defendant during the course of the last three years. The contention of counsel that the Local Commissioner, was not given power to consider the admissibility or relevance of a question or to overrule any objection to any question is a submission which is contrary to law. In fact appellants cannot contend that such a power should have been delegated. It is again argued that witnesses are to be examined in open Court and Commissioner cannot make any observation as to demeanour of witnesses. In our view, these problems do arise even under Order 26 commissions and are not new. We, therefore, reject all these contentions raised by the appellant's counsel. Whene parties consent, they must also be deemed to have accepted that it was a fit case for the exercise of discretion to appoint a Commissioner under Chapter XA. .
(12) A jurisdictional issue has also begn raised by the counsel slating that if the Court has no power, parties cannot, by consent, confer jurisdiction. This submission is again not tenable because under this Rule in Chapter XA, the Court's power is very much there to appoint a Local Commissioner notwithstanding anything in Order 26 of the Code of Civil Procedure. Where, however, the parties agree, and the Court has the power, the principle that consent cannot confer jurisdiction, does not obviously apply. This disposes of all the objections raised by the appellant. Point I is held accordingly. Point 2
(13) WE now come to the question as to what her the Rule in Chapter XA is to be treated only as an exception or as a proviso to Order 26?
(14) THE Rule in Chapter XA of the Delhi High Court (Original Side) Rules reads as follows: "x-A Evidence on Commission at Court's direction: Commission to examine parties and 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 should be read as evidence in the suit.
(15) WE shall first refer to the two aspects mentioned in Deepak Kapur's case. Now the Rule starts with a 'non-obstante' clause specifically referring to Order XXVI Code of Civil Procedure which it overrides. We agree that that does not, as stated in Deepak Kapoor's case by itself, mean that a Commissioner can be appointed under this Rule without recording any reasons. In fact, when the rule uses the words 'may, at its discretion', the discretion cannot be said to be an absolute discretion to appoint a Local Commissioner without any reasons. We agree with the view of the Division Bench in Deepak Kapur's case that reasons have to be given. Of course, if it is by consent, no reasons are, in our view, necessary. This answers the First objection raised in Deepak Kapur's case.
(16) COMING to the second objection raised in that case we agree that the Commissioner cannot be vested with judicial powers of rejecting any question/answer or of deciding the admissibility of documents. As and when such a situation arises, the Commissioner appointed under Chapter XA has obviously to follow the procedure similar to the one indicated in Order 26. Rule 16 A (brought in by the 1976 amendment). That is because Order 26 Rule 16 A contains a general principle that judicial functions cannot be delegated. The Commissioner appointed under Chapter XA could therefore follow the same legal principles and procedure indicated in Order 26 Rule 16a. We may in this context refer to Order 26 Rule 16a. That rule reads: "r. 16a. Questions objected to before the Commissioner (1) Where any question put to a witness is objected to by a party or his pleader in proceedings before a Commissioner appointed under this Order, the Commissioner shall take down the question, the answer, the objections and the name of the party or, as the case may be, the pleader so objecting: " Provided that the Commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the Court, and, where the Court decides that there is no question of privilege, the witness may be recalled by the Commissioner and examined by him or the witness may be examined by the Court with regard to the question which was objected to on the ground of privilege. (2) No answer taken down under sub-section (1) shall be read as evidence in the suit except by the order of the Court.
(17) THUS the second objection raised by the Division Bench also can be surmounted easily. We shall now deal with the question whether the Rule can be treated as an exception or a proviso.
(18) WHEN the Rule opens with a non-obstante clause and specifically refers to Order 26, it is, in our view, not open to describe it as an exception or proviso to Order 26. If we examine the background or situation in which the Rule came to be made in 1991, it will be clear that the Rule is intended to serve a definite purpose and is not intended to cover only the few exceptional catgories rerferred to in Deepak Kapur's case.
(19) WHEN this Court was invested nearly thirty years ago, with Original Side Jurisdiction, it had few suits on its file. In those days, there was enought time to examine witnesses in Courts. If the cases were covered by Order 26 Code of Civil Procedure, Local Commissioners could be appointed. But, as years rolled by, a large number of old suits accumulated and were standing in long queue awaiting trial. Judges sitting on the Original Side were having tremendous pressure on their time. Interlocutory and other miscellaneous work was taking away most of the time. It became a vicious circle that parties were filing more and more las to get immediate relief and this resulted in tremendous stagnation of trial of suits. As suits were not ta en up, more aqd more las came to be filed. It was therefore realised that it would be difficult to clear the backlog of the suits unless some radical provision was made in the Rules. Even today it is almost impossible for the learned Judges on the Original Side to record evidence by themselves in all the. thousands of old cases. Added to that, property values skyrocketed. Parties in possession of imovable properties without any legal fitle were insisting on being evicted only by due process of law. Several of them have even started demanding huge sums for vacating properly they had otherwise no right to. occupy. This was not because their case became stronger by lapse of time but because the due process of law was consuming undue time for delivering justice. Due process did not mean delayed justice.
(20) THE result was that judges became helpless spectator's and something radical had to be provided. That was why in 1991, this Rule was brought in Chapter XA of the Original Side Rules'. The non-obstante clause was specifically introduced to override Order 26, to the extent mentioned earlier. It is. therefore, not possible for us to treat the Rule as a proviso or exception to Order 26. The Rule had a definite purpose. Point 2 is decided accordingly. Point 3
(21) WE shall now try to delineate the area of operation of the Rule in Chapter XA. As already stated, the Rule is not restricted to the exceptional or emergent situations referred to in Deepak Kapur's case, which we have extracted earlier.
(22) IN our opinion, if both parties agree that they will have the parties/witnesses examined on Commission to have a quick disposal of the suit whether it is old or new, we do not see any reason as to why the Court should not accept the suggestion. If the suggestion is accepted, it cannot be said that the discretion under the Rule has been improperly exercised. Again, if the suit is quite an old suit, which has been languishing without trial, and the Court appoints a Local Commissioner, it must be treated that the Court is exercising the jurisdiction properly and also that the discretion is exercised within the intendment of the rule. In matters where the suit is not that old and the parties do not consent but otherwise there is very grave urgency in the matter or where a very large number of witnesses have to be examined, exercise of power under this Rule cannot, in our view, be faulted and it must be presumed that the discretion is exercised properly within, the intendment of the Rule. These appear to us to be some of the situations mainly intended to be covered by the rule. The Court will, however, record reasons for appointment, whenever the appointment is not by consent. The Court will not. as. already stated, authorise the Commissioner to exercise any judicial functions such as rejecting the questions/answers or documents. In such situations, the Commissioner will adopt the procedure similar to the one indicated under Order 26, Rule 16a. Point 3 is decided accordingly. Point 4
(23) IN each of these types of cases, when a Commissioner is appointed, the Court must lake 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 Commissioner 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 objections to delay the evidence. The new solution cannot be allowed to be abused not 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 Commissioners 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 Commisioner. 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 observations because it has come to our notice that in some ca,ses 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 Comiriissioner) 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 keepin
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g 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 Commissioners, 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 priclical aspects regarding which in today's atmosp here the learned Judges appointinu Local Commissioners will, we are sure, take adequate care, before appointing Local Commissioners under the rules. (27) IF these safe gaurds 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 staling 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. (28) WE therefore hold that the order appointing Commissioner in this case by consent is not without jurisdiction. In fact, the Commissioner was asked not to decide any questions of admissibility. The recording of evidence in part was over and there was no demur for three years after 1992. After the evidence was recorded as stated above, the present IA was filed by the defendants only in 1995. It is therefore not possible to accede to the contentions raised in the appeal. (29) FOR the aforesaid reasons, we dismiss this appeal and confirm the order though for different reasons.