DEEPAK KAPUR Vs. ASHOK K GHOSE

JUDGEMENT

(1.) These appeals were allowed earlier on 9th March, 1994, setting aside two orders of the learned Single Judge - (1) an order declining the list of witnesses as it was filed out of time and (2) appointing a commissioner to record evidence with a power to the commissioner to disallow questions which did not arise from the pleadings of the parties or the issues. As to the former Order, the Bench declined to interfere with the order of the learned Single Judge, but permitted the appellant to move an application for review or for condonation of delay for taking the list of witnesses on record. However, the second referred order appointing the Commissioner, was set aside on the ground that the said order went beyond the provisions of Order 26 of the Code of Civil Procedure. None of the witnesses was exempted from appearance in Court, none was sick, nor was infirm. The Bench proceeded on the assumption that provisions of Order 26 Civil Procedure Code are exhaustive of the circumstances under which a commissioner could be appointed to examine the witnesses and therefore, an order appointing a commissioner to examine all witnesses, irrespective of the circumstances referred in Order 26 Civil Procedure Code will be illegal.

(2.) The learned counsel for the plaintiff (respondent in the appeal) moved an ap plication in each of the appeals seeking review of the order made in the Appeal, to the extent of the said order setting aside the appointment of the Commissioner.

(3.) Ms. Luthra strongly relied on Chapter X-A of the Delhi High Court Civil (Original Side) Rules and contended that the Rule inserted as per the said Chapter in the year 1991 was not placed before the Bench on the earlier occasion and that under this amended Rule, the court has ample power to appoint a Commissioner to record evidence in a case, without being conditioned by the provisions of Order 26 CPC.