CASE ANALYSIS – PUSHPA VS. BIMLA, AIR 2000 DEL.

INTRODUCTION

“Delay defeats justice”, the phrase which probably can’t untie from the legal machinery but time and again Courts have tried to mitigate this problem. One such scenario is when Courts appoint Commissioner’s to refer evidences suo moto or at the request of the parties. The case involved Pushpa v. Bimla, 2000 is the case which not only takes up this issue but the interpretation of the provision of Order 26 CPC vis-a-vis  Chapter X-A of Delhi High Court(Original Side) Rules, 1967

FACTS OF THE CASE 

1. This present case involves the appellant named Pushpa Devi and the respondent Bimla Devi, with respect to a property dispute where in the appellant had requested the appointment of local commissioner which was rejected and subsequently leading to the present appeal before the Delhi High Court on 14 December 1999
2. This First Appeal from Order (FAO) was filed against an interlocutory order passed in a suit on the Original Side (OS) jurisdiction of the Delhi High Court.  
3. 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 or there were no special circumstances requiring such a course to be followed.
4. Due to concerns raised with respect to improper use of this provision, the matter was brought before a Full bench comprising of Justice S,N. Variava, Justice S.K.Mahajan, Justice Mukul Mudgal.

ISSUES OF THE CASE

1. Whether the entire evidence in a suit can be referred to a Commissioner even without consent of the parties ?
2. Whether the evidence can be referred to a Commissioner 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 ?
3. What is the scope of Chapter X-A of the Delhi High Court (Original Sides) Rules, 1967, in relation to Order 26 of the Civil Procedure Code (CPC) ?

JUDGEMENT

  The court clarified that it is merely considering the question which has been referred to it and after thorough examination of relevant precedents and interpretation of the provisions it had laid down following in the judgement –

1. The first point to be clarified by the court was with respect to the scope and interpretation of Chapter X-A of Delhi High Court (Original Side) Rules (1967), where it was held that Chapter X-A is not merely a proviso or exception to Order 26 of CPC. The beginning part clearly states that “notwithstanding anything contained in Order 26 of C.P.C ”. This is enough to understand that the court is not restricted by the limits which are laid down under Order 26 of CPC and it can exercise power even for the reasons not set out in Order 26, CPC if in it’s discretion it is necessary to do so. However the discretion not being the one which is absolute.
2. The Court while exercising the power must record the reasons in writing and it cannot by virtue of this Rule delegate any judicial powers to the Commissioner. Thus the rule was clear that not in any circumstance a commissioner can be given judicial powers as only a court could exercise it.
3. The provision of Order 26, Rule 16-A would continue to apply even though the Court may exercise power under Chapter X-A as in no means the procedure laid down under Order 26, CPC could be ignored or not followed.
4. It further held that in such cases where both the parties refer the entire or part of evidence to commissioner then unless there is any reason to rule otherwise the court should normally act on such consent and by consent of part 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.
5. In cases where the parties do not consent then the discretion must be exercised judicially with valid reasons. Thus in this case the court opined even on those circumstances where parties doesn’t consent to refer evidences to the commissioner.
6. Further, the court discussed that the provisions of Section 165 of the Evidence Act which permits the judge to ask any question as he pleases, in any form, at any time, of any witness, of the party, about any fact, ‘relevant or irrelevant’, or order production of any document or thing would not become useless and they would continue to apply. There’s nothing in Chapter X-A of the Delhi High Court Court (Original Side) Rules, 1967 or in Order 26 of C.P.C. which prevents or restricts the power of the Court to ask any question. If necessary, for that purpose the witnesses can be recalled. The Court can call always direct production of evidence or documents at any time. Held further that Rule 16 of Order 26 of CPC also permits the Commissioner to call record and documents and to examine any person.
7. The Division Bench discussed the 2 distinct views taken in the precedents namely Deepak Kapur v. Ashok K.Ghose (1994) 30 DRJ 489 and Fashion Linkers v. Savitri Devi (1995) 34 DRJ 672 which dealt with the same question where in, in the former it was held that Chapter X-A was merely a proviso to Order 26 CPC and that delay by itself was not a ground to invoke Chapter X-A. And in the latter case, the Division Bench did not agree with that view and held that Chapter X-A was not a proviso or exception to Order 26,CPC and that a matter being old could by itself be a ground for referring evidence to the Commissioner.
8. The court after analysing the precedents and provisions of law was of the opinion in this case that the atmosphere in a Court will generally act as a deterrent against a witness deposing falsehood and that it is important that the demeanour of a winess be watched and scrutinised by a Judge. However real circumstances are such that Suits do not reach hearing for a large number of years thereby enforcing “delay defeats justice”.
9. It is due to such circumstances that Chapter X-A had been incorporated in the Delhi High Court(Original Side)Rules, 1967 and the Court was in agreement with the observations in Fashion Linkers’ case that something drastic had been required. It was held 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.
10.  Lastly, the court held 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 and in case of any Appeal pending against such order, then the Appeal will be disposed off in accordance with law.
11.  For all the aforesaid reasons, the reference was answered accordingly and the Appeal is referred back to the Division Bench for decision on merits in accordance with law.

REASONING

1. In the following case, the court analysed 3 main precedents deciding on the question raised of referring evidence to commissioner and interpreting Delhi High Court (Original Side) Rules, 1967 vis-a-vis Order 26 CPC
2. Firstly, taking the note of the case in Deepak Kapur v. Ashok K.Ghose (1994) 30 DRJ 489, it was held that Chapter X-A was a mere exception to the power of the Court under Order 26 of the CPC and further opined on the view that under Rule 16-A the Commissioner had no power to overrule any objection and strike off an answer as it was a judicial power and cannot be delegated. Further that there should be extraordinary circumstances to justify the exercise of the court’s discretion to examine all parties and all witnesses on commission.
3. In the case Fashion Linkers v. Savitri Devi (1995) 34 DRJ 672 The Division Bench took a different view and held this Rule had a definite purpose and couldn’t be treated as a proviso or an exception to Order 26, CPC. The Court could invoke this rule when both the parties agreed to have the witnesses examined on commission and even when the suit was not old. In case of parties not giving consent then a grave urgency can invoke this rule. And further held the Court must record reasons for appointment whenever such appointment is not by consent.
4. In B.N.Mullick v. Sita Ram Mullick AIR 1999 Delhi 153, the Court proceeds with the judgement in Deepak Kapur’s case and accepts that the discretion under Chapter X-A was to be exercised on sound judicial principles and delay by itself could not be a ground to make such an Order 
5. The Court found it appropriate to agree with Fashion Linker’s case and opined on the view that in each such cases when Commissioner is appointed, the Court must 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 don’t harass the party. The Court believed that it is necessary to keep track of what is happening before the Local Commissioner.

CONCLUSION

The court with this judgement not only gave a clear interpretation of the provisions of Order 26 CPC and Chapter X-A but also laid down certain practical aspects to be taken care in case of appointment of Commissioner including situations when Local Commissioners are to be appointed in too many cases, problems arising in case of Original documents filed by the parties to be taken out of the court, photocopies to be allowed or not, venue of recording evidence be High Court itself and whether Commissioner be an undertaking that they will keep the Court records safe among others. It further provided liberty to learned judges to require them to follow other procedural aspects or safeguards as necessary.

REFERENCES

1. https://indiankanoon.org/doc/486341/
2. All India Reporter Delhi High Court 2000

Written by Deepika Venkat Subramanian an Intern under Legal Vidhiya.

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