SAVITRI DEVI Vs. FASHION LINKERS

JUDGEMENT

(1.) The defendants M/s Fashion Linkers & 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 & 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 circumstnaces 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 commisisoner 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 arc the basis of this application and which can be summarised as under:-