USHA MEHRA, J.


(1) THE defendants M/s Fashion Linkers and Ors. by this application want this court to hold that the evidence recorded by the local commissioner is neither sustainable nor tanable in law. The grounds for attacking the evidence recorded by the local commissioner is primarily based on the fact that the Division Bench of this High Court in the case of Sh. Deepak Kapur V. Ashok K. Ghose and Ors. reported in 1994 Vol. 30 DRJ (DB) page 489 has held that evidence by commissioner should be allowed only in compelling and exceptional circumstances. Since in this case there were no compelling circumstances nor any reason was assigned for ordering the evidence to be recorded by the commissioner, hence the discretion has been wrongly exercised. The Court in this case could not have ordered for recording the evidence by the local commissioner and consequently the evidence recorded by the said Commissioner is no evidence in the eye of law nor can be read.


(2) MR. S. N. Marwah, Senior Advocate, accompanied by Mr. S. N. Gupta, appearing for the plaintiff refuted the arguments of Mr. Pandey orally. They stated that no reply need be filed as the defendant has raised only a legal issue.


(3) HEARD Mr. S. N. Marwah, Senior Advocate for the plaintiff and Mr. S. P. Pandey for the defendants. At the outset it must be mentioned that except for raising this legal objection, the defendant has not raised any objection against actual recording of the evidence or against the local commissioner's way. of recording the evidence. Pure questions of law have been raised which are the basis of this application and which can be summarised as under:-


i) The court exercised the discretion arbitrarily. There was no exceptional circumstance for getting the evidence recorded through a local commissioner;


ii) Judicial discretion cannot be delegated;


iii) Non application of mind; and lastly


iv) Delay in itself is no ground for getting the evidence recorded from a local commissioner. Thus evidence recorded by the local commissioner is against the law, therefore, it cannot be taken on record.


(4) SO far as objection No. 1 is concerned the Division Bench in the case of Deepak Kapur (Supra) in no uncertain words in para 15 of the said judgement have stated that there may be several unforeseen circumstances in which a strict adherence to the provisions of Order 26 of Civil Procedure Code may not be possible. Strict adherence 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 witness shall have to be examined and such an examination in the court may be found not possible immediately. Further observed that it would be difficult to make an advance catalogue of the circumstances in which this power could be exercised by the Court. Each case has to be examined and decided on its own merits. Situation may require a departure from the normal rules provided under Order 26 of the Civil Procedure Code. Admittedly in a trial normally witnesses should be examined in the open court. But in certain circumstances the Court by exercising its judicial discretion as envisaged under Chapter X-A of the Delhi High Court Civil (Original Side) Rules, allow the witnesses to be examined by commissioner. Evidence so recorded shall be read as an evidence in the suit. The word "discretion" used in Chapte X-A of the Delhi High Court Ciyil (Original Side) Rules has been interpreted in Deepak Kapur's case (Supra) to mean that the power is not absolutely unfattered. The discretion has to be a judicial discretion. But that does not mean that the Court in its wisdom cannot exercise this discretion in any other way except the compelling circumstances.


(5) THERE is no dispule, so far as the law laid down by the Division Bench is concerned that such a discretion as given in Chapter X-A has to be exercised judicially. As already observed above, the court while disposing of the review opined that it is difficult to make an advance catalogue of the circumstances where Court can exercise this discretion. In the present case this discretion was exercised with the consent of the parties taking into consideration the circumstances then prevailing.


(6) IN the context of this case it will not he out of place to mention that on 8th July, 1992 Mr. S. P. Pandy appeared for defendants and Mr. S. N. Marwah with Mr. S. N. Gupta for the plaintiff. At their joint request the Joint Registrar of this Court was appointed as the Local Commissioner to record the remaining evidence. This joint request, to my mind, was a circumstance on the basis of which the court exercised the discretion on 8th July,1992. In Deepak Kapur's case (Supra) the facts were different. In that case the learned Single Judge of his own appointed the Commissioner to record the evidence because otherwise it would prolong the case and there would be delay in recording the evidence. It is in this background that the Division Bench opined that this was not such a circumstance in itself to deviate from the normal procedure of recording evidence by the Court itself. Moreover, while appointing the Commissioner the learned Single Judge in Deepak Kapur's case (Supra) delegated the power to the Commissioner to disallow the questions which did not arise from the pleadings of the parties or the issues. Such a power the Division Bench observed vested with the Court and the Court could not delegate the said power. Judicial discretion can only be exercised by the Court. This was another circumstance for the Division Bench to conclude that lhe discretion was not exercised properly by lhe Court while appointing the Commissioner to record the evidence. Moreover in that case Deepak Kapur fell aggreived with the order and immediately went in appeal challenging such an appointment of the local commissioner by the Court challenging that order But in the present case both the parties through their counsel requested the court to appoint a local commissioner for recording of the evidence. Therefore, it cannot be said that the court exercised the discretion arbitrarily. Part of the witnesses of the plaintiff were recorded in the open court. Only PW-3 and PW-4 were examined on commission. Whereas the complete evidence of the defendant was examined by the commissioner. At no stage the defendant or his counsel took objection to the recording of his evidence by the commissioner. Even at the sake of repetition, I would like t stat state it was at the request of the defendant also that the courtasked the local commissioner to record the evidence. Subsequently the summoning of the bank official by the defendant was got ordered from the Court on 9th July, 1992. There was pecific direction to the Commissioner not to disallow any question bul leave it for the court to decide as to which of the question or answer can be taken on record. That has to he determined by the Court at the time of hearing the arguments. Therefore, in the facts. of this it cannot be said that the court delegated its judicial discretion to the commissioner as was done in the case. of Deepak Kapur (supra).


(7) THE present case may be one of the instances which was not fathom by the Division Bench when it observed that 'it is difficult to make an advance catalogue of the circumstances" in which this power could be exercised by the Court. The discretion in the present case was exercised at the joint request of the counsel for the parties with no delegation of power to the Commissioner. Therefore, the present case is quite distinguishable from the facts of Deepak Kapur's case (Supra). Even otherwise Order 19, CPC, gives power to the court to lake the evidence by way of affidavit in order to cut short the long procedure and then permit the other parly to cross examine such a wilness. If this procedure is permissible under the CPC. then I see no reason why with the consent of both the parties and their counsel, the court could not get the evidence recorded through a local commissioner like in this case through the Joint

Registrar of this Court who is not only a law graduate but also exercise judicial functions under Delhi High Courl Civil (Original Side) Rules. (8) AS already observed above there are no allegations with regard to the manner of recording the evidence by the commissioner. It is not the case of the defendant that commissioner did not give any opportunity or did not record the evidence properly. Now when the whole evidence has already been recorded without any objection by either party rather defendants participated in the same and led the evidence before the Commissioner, it would not be justified nor permissible under law to say that such an evidence is no evidence in the eyes of law or should not be read as evidence in this suit. (9) IN view of my above discussion the application is dismissed. The evidence recorded by the Commissioner will he read as an evidence in the suit.