RAM KRISHNA DALMIA Vs. FIROZE CHAND

JUDGEMENT

(1.) IN 1953 the suit out of which the present petition for revision has arisen was instituted by the plaintiff-respondent for recovery of a sum exceeding Rs. 1,00,000/- on the allegation that he had been appointed in June 1950 as an editor of the Times Newspaper for a period of three years but that his services had been dispensed with on 30-9-1950 in breach of the terms of contract of employment.

(2.) DURING the pendency of the suit the defendants appeal for examination of certain witnesses on commission at Bombay. While a witness was being cross-examined certain objections were raised to the questions which were being asked in cross-examination by the learned counsel for the defendants. A point at once arose as to whether the Commissioner had the power to disallow such questions as he considered irrelevant. It seems that he counsel for the plaintiff represented to the commissioner that he would like to move the Court issuing the commission and obtain the necessary directions from it. The Commissioner submitted an interim report in which he expressed the opinion that the necessary directions and orders on the point ought to be obtained from the Court. The plaintiff then presented an application under Section 151 of the Code of Civil Procedure for necessary directions from the Court to the Commissioner on the question whether the commissioner could or could not decide the relevancy or otherwise of the questions put to the witnesses. Two matters had to be decided by the Court below. One was the competency and maintainability of an application under Section 151 and the other, the question on which directions had been sought. The trial Court made a fairly detailed order holding that it was not open to the Commissioner to disallow any questions. It appears, however, that no definite or clear decision was given with regard to the competency or maintainability of an application under Section 151 in such matters as also the point whether the Court was competent to give such directions.

(3.) THE first contention of Mr. A. R. Whig who appears for the petitioners is that the Court could not give any direction in the matter of allowing or disallowing any questions which were being put to the various witnesses during the course of their examination. My attention has been invited to Order XXXI, Rules 1 to 8 as also Rules 16 to 18 for the purpose of showing that no such provision exists according to which the Court can be moved for deciding a question of law to enable the Commissioner to proceed with the recording of evidence, Section 151 also, according to the submission of the learned counsel for the petitioners, cannot be invoked. A good deal of reliance has been placed on a decision of the Bombay High Court in Laxmibat v. Husainbhai Ahmendbhai, 36 Ind Cas 618 (2): (AIR 1916 Bom 181), in which a Commissioner has been appointed to take accounts and the question was whether the Commissioner was not entitled to decide questions of law which might arise while taking the accounts. It was observed by Macleod J. that it was impossible for the Court while giving directions for the taking, for instance, of a mortgage account, to decide all questions of law, since many such questions did not arise until the accounts were filed. According to the learned Judge, the Commissioner often could not arrive at a conclusion without deciding a question of law. He was decidedly of the opinion that as in the High Court Rules there was no rule similar to rule 69 of Order LV of the rules of the Supreme Court (in England) it was not open to any of the parties to the reference to ask the Judge to give his opinion on questions of law which had arisen in the taking of the accounts. The learned Judge further observed that it was not in the interests of justice that parties to a reference should be at liberty to stop the proceedings by moving the Court to give its opinion on a point of law which the Commissioner could decide. The correct procedure was that the commissioner should deal with such questions and the parties objecting to his decision then should proceed in the ordinary course by filing objections to his report. The concluding paragraph in the judgment of Macleod J. , deserves to be set out in its entirety: "but I must not be taken as holding that the Court, once a reference has been made to the commissioner, loses all control over the proceedings until the Commissioner has made his report. There may be cases in which the Court may find it necessary to withdraw the proceedings from the Commissioner and resume the hearing itself, but such cases must necessarily be of rare occurrence. It is a different matter to ask the Court to resume the hearing, merely for the purpose of deciding certain questions which come within the powers of the Commissioner. " no cases has been brought to my notice by the learned counsel for the respondent taking a contrary view. It seems to me highly doubtful that any application would lie of the nature that was made in the present case under Section 151 of the Code of Civil Procedure.