FASHION LINKERS Vs. SAVITRI DEVI

JUDGEMENT

(1.) his appeal raises a question of appointment of Local Commissioners on the Original Side of this Court for recording evidence of parties and witnesses. It is therefore of considerable importance.

(2.) The suit in this case was Filed by the respondent in 1988 for possession of an industrial area premises, for mandatory direction and for recovery of Rs. 7,99,500.00 By consent of parties, an order dated 8.7.1992, was passed by a learned Single Judge of this Court appointing Shri J.R. Sharma, Joint Registrar of this Court, as Local Commissioner, for recording of evidence on commission. In fact, part of the evidence was earlier recorded in Court and after the Local Commissioner was appointed, he examined PWs 3 and 4 and the complete evidence of the defendant. Subsequently, a bank officer was to be examined as per order of the Court dated 9.7.92. There was a specific direction to the Commissioner not to disallow any question but leave it to the Court to decide whether the question/answer could be taken on record. The admissibility there of was to be determined by the Court at the time of hearing of arguments.

(3.) After the Local Commissioner was thus appointed by consent and evidence was also recorded, during the last three years, the defendant appellant did not raise any objection but then filed IA 3671/95 for a declaration that the evidence recorded by the Local Commissioner is neither sustainable nor tenable. Reliance was placed on the Division Bench judgment in Sh. Deepok Kapur vs. Ashok K. Ghose & Ors (1994)(30) DRJ 489(DB) to contend that the order appointing Commissioner was void and consent could not confer jurisdiction on Court. The learned trial Judge after staling that the Commissioner was appointed by consent, that the Court had rightly exercised discretion in appointing a Commissioner under Chapter X-A of the Original Side Rules, and staling that the appointment did not violate even the principles laid down in Deepak Kapur's case, dismissed the IA. This is an appeal by the defendant against that order.