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Fashion Linkers v/s Savitri Devi

    Regular Appeal No. 38 of 1995 First Appeal (OS) Appeal No. 167 of 1995

    Decided On, 08 September 1995

    At, High Court of Delhi


    For the Appearing Parties: S.P. Pandey, Advocate.

Judgment Text


(1) THIS is a review application filed by the appellants, (defendants in the Suit No. 1590/88) for review of our order dated 17th August,1995 passed in FAO (OS) 167/95. The said FAO was filed by the appellant against the order passed by the learned Single Judge in IA No. 3671/95 in S. No. 1590/88. We confirmed the order of the learned Single Judge refusing the request of the appellant for a declaration that the evidence recorded by the local commissioner was not sustainable and tenable in law. The learned Single Judge held that the appellant could not take such an objection to the evidence recorded by the Local Commissioner as per the consent order of the Court dated 8th July,1992, particularly after the whole evidence was recorded without any objection and the appellant led the evidence before the Commissioner.

(2) WHEN the FAO was argued before us, the learned counsel for the appellant placed reliance on the Division Bench judgment in Sh. Deepak Kapur vs. Ashok K. Ghose and Ors. (1994) (30) DRJ 489 (DB). In that judgment, a Division Bench of this Court had held that the new rule made under Chapter X-A of the Delhi High Court (Original Side) Rules, permitting appointment of Local Commissioner at the discretion of the Court notwithstanding Order 26, Civil Procedure Code had a very restricted scope and that Local Commissioner could be appointed only in exceptional cases notwithstanding the existence of the non-obstante clause in the new Rule. The Division Bench also held that the Court could not delegate its judicial power to the Commissioner to overrule questions/answers. (In fact, in the present case, no such power was delegated to the Local Commissioner). Basing on this judgment, counsel for appellant contended before us in the FAO that the evidence recorded by the Local Commissioner appointed under the new rule was to be treated as invalid, inasmuch as consent for appointment of the Local Commissioner under the new Rule, could not confer any jurisdiction to record evidence. If Order 26 did not apply, the appointment of Local Commissioner could not be sustained under the new Rule. That was the argument in the FAO.

(3) WE pointed out in our judgment in the FAO that the judgment of the Division Bench in Deepak Kapoor's case did not hold the field because its efficacy as a precedent was lost in view of the fact that in an Special Leave Petition against the said judgment, the Supreme Court had expressly left the legal question open. We then went into the scope of the new Rule again and held that it was not to be treated as an exception to Order 26, Civil Procedure Code but had a wider area of operation, in view of the non- obstante clause, that it was intended to be used for appointment of Local Commissioners for recording evidence in old cases. We however cautioned that questions of admissibility have to be dealt with by the Court as provided in Order 26 Rule 16a. We dismissed the FAO.

(4) BUT now, it is contended before us again that by not referring the matter to a Fuli Bench, we had violated all principles of judicial discipline and we should therefore set aside the judgment and refer the matter to a Full Bench. We pointed out to counsel that the judgment of the Division Bench of this Court in Deepak Kapur`s case ceased to be a binding judgment because the legal issue as to the effect of the new Rule was left open by the Supreme Court on appeal vide order of the Supreme Court dated 24th October,1994 passed in Special Leave Petition (Civil) 17238 and 17239 (against judgment in RA 15/94 in FAO (OS) 64/94 and RA 14/94 in FAO 63/94). We had extracted the order of the Supreme Court in Special Leave Petition in our judgment in the FAO. The clear words of the Supreme Court are: @subpara = "the question of law raised by the petitioner in the Special Leave Petition is left open. "

(5) THIS aspect was already referred to in an order in the FAO. We were of the view that once the question decided by the Division Bench was left open, this Court was free to deal with this question afresh without referring the matter to a Full Bench. We were therefore clearly within our jurisdiction to consider the effect of the new Rule, uninhibited by what was said in Deepak Kapur's case by the earlier Division Bench. Hence this contention is to be rejected.

(6) WHILE dismissing the appeal, we also made certain incidental observations. We said that the Local Commissioner appointed to record the evidence would not decide questions of admissibility of evidence. We also took care to say that after a Local Commissioner is appointed, the matter should be posted in the Court every two months so that the Court could monitor whether there was any progress before the Local Commissioner. We also said that the Court should see that the Court staff were available before the Local Commissioner to keep the court records safe. So far as these guidelines were concerned they were made to help the learned Single Judges sitting on the original side to pass appropriate orders. In fact, those guidelines do not prejudice the appellant.

(7) SO far as the facts of the case in the FAO were concerned, we held that the appointment of Local Commissioner in that case was by consent and therefore parties must be deemed to have accepted that the case was one fit for exercise of discretion to appoint a Local Commissioner. If the new Rule gave discretion to the Court, notwithstanding Order 26, the cons

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ent given by the parties would clearly fill up the requirement. Therefore the principle that consent could not confer jurisdiction would not apply. We also pointed to counsel that Local Commissioner in this case was rightly not asked by the Court to decide any question of admissibility of the evidence. In fact, evidence of of Public Witness 3 and Public Witness 4 and also of the appellant was over and there was no demur for a period of three years after 1992. (8) FOR the aforesaid reasons we do not find any reasons to accept the review application. The review application is accordingly dismissed.