ROHINTON PANTHAKY Vs. ARMIN R. PANTHAKY

JUDGEMENT

(1.) In Notice of Motion No.6 of 2014, leave to intervene granted in terms of prayer (a) limited to the present hearing, as the applicants are the trustees of the Parsi Panchayet Funds and Properties and have sought to make submissions on a question of law. Motion disposed of in these terms.

(2.) In a suit under the Parsi Marriage & Divorce Act, 1936, does the Court have the discretion to direct that evidence be recorded before a Commissioner under Order 18 Rule 4(2) of the Code of Civil Procedure, 1908, or must it only be recorded in Court with delegates present There were, it seems, conflicting views on this question. Some courts permitted evidence to be recorded before a Commissioner. By an order dated 13th April 2012 in Jasmine Cusrow Damania v Cusrow Minoo Damania, In Notice of Motion No.14 of 2011 in Parsi Suit No.32 of 2008, per Mrs. R.P. Sondurbaldota, J. a learned single Judge of this Court concluded that question was at least debatable, and left it open. In Damania v Damania, part of the evidence was taken on commission. The defendant applied for having the matter withdrawn to court and the commissioner, appointed earlier by consent, discharged. As the application was not for discarding the evidence previously recorded, but only that further evidence be taken in court, Mrs. R.P. Sondurbaldota, J. held that the application could be allowed without examining the larger issue.

(3.) On 14th February 2014, the present suit was taken up by Jamdar, J., to whom such suits were then assigned. The 13th April 2012 order in Damania v Damania was placed before the court. Jamdar, J. held that as the question of law, noted at the start of this judgment, would likely affect all contested Parsi matrimonial suits, it would be appropriate to consider the submissions of advocates in such matters. The learned Advocate-General, Mr. D.J. Khambata, was requested to assist the court. Before that hearing could take place, there was a change in assignment and Parsi suits were made part of my present assignment. Following the order of Jamdar, J., I directed the registry to issue a notice inviting advocates to make their submissions on 24th March 2014.