CIVIL PROCEDURE CODE - II

APPOINTMENT OF LOCAL
COMMISSIONER

Presented By:

AKASH NARAYAN

Roll no. - 06

8th SEMESTER

BA.LLB. (Hons.) (Self-Financed)

ACKNOWLEDGMENT

To start off at the very outset, I would like to express my gratitude

towards for giving me the opportunity to make this project. I would like

to thank my parents and my seniors without who’s help I wouldn’t

have been able to complete this project.

 TABLE OF CONTENTS

Synopsis ...........................................................................................................................................4

Introduction .................................................................................................................................4

Research Methodology ................................................................................................................4

Literature review..........................................................................................................................5

Research Question .......................................................................................................................5

Research Scheme / Tentative Chapterization ..............................................................................5

Case Laws To Be Referred ..........................................................................................................6

Introduction .....................................................................................................................................7

Position before the amendment .......................................................................................................9

Position After the amendment .......................................................................................................13

Conclusion .....................................................................................................................................17
 S YNOPSIS
INTRODUCTION

The subject matter of this research paper is the appointment of a Local

Commissioner(Hereinafter LC) for the collection of evidence. Particularly, the Order XXVI,
deals with the appointment of said LC. The researcher in this paper will go be laying emphasis
on rule 4A1, This section lays down that the court may appoint a commissioner for the purpose of
recording evidence in any given suit within the jurisdiction, provided that it is within the local
limits. This may be done keeping in mind the consideration to expedite the disposal of the case
or with keeping the interests of justice or for any other vehement reason. This Commissioner will
then record the testimonies of witnesses or any other evidence that is presented in front of the
court. The person appointed does not do this out of a sense of moral duty of social service or due
to being ordered by the court, they are given remuneration for performing this task. This
remuneration is sourced from the parties to the suit themselves and not from a public fund. Thus,
it can be seen to be a bit problematic where one of the parties to the suit come from a humble
background, which puts an additional financial burden on them. There are many cases where this
course of action is taken without taking into account such considerations. The researcher seeks to
examine the issue of whether the LC can be appointed by the court without the consent of the
parties.

RESEARCH METHODOLOGY

The researcher will use primarily doctrinal methods in this paper and rely on primary sources
including an emphasis on case law. There will ancillary reliance on secondary sources as well.

1 Order 26 Rule 4A, Code of Civil Procedure,1908. (Introduced in the 1999 Amendment)
 LITERATURE REVIEW

The researcher will primarily rely on Commentaries on the Law of Evidence for the purpose of
gaining knowledge about the issue. The primary source of literature shall include the landmark
cases on the issue at hand. The range of years that the researcher has selected the cases from is
1995-2015.

RESEARCH QUESTION

Whether the court has the power to appoint a Local Commissioner where the parties to the
dispute at hand have not granted their consent for doing the same?

RESEARCH SCHEME / TENTATIVE CHAPTERIZATION

The First Chapter will deal primarily with the scope of the issue and will provide an introduction
to the problem

The Second Chapter will examine the position of law according to the various decisions made by
the court before the introduction of the amendment .

The Third Chapter will examine the position of law according to the various decisions made by
the court after the introduction of the amendment.

The final Chapter shall be a brief conclusion that the researcher has drawn from the material
referred to.
 CASE LAWS TO BE REFERRED

PRE-AMENDMENT
• Deepak Kumar Vs Ashok K. Ghosh 1994 (30) DRJ 489

• Fashion Linkers And Ors. vs Savitri Devi And Anr. 1995 (35) DRJ 195

• B.N. Mullick & Ors. vs Sita Ram Mullick & Ors AIR 1999 Delhi 153

• Smt. Pushpa Devi vs Smt. Bimla Devi And Ors 2000 IIAD Delhi 404

POST-AMENDMENT
• H Dohil Constructions Co. (P) Ltd. vs. Rohit Lal. MANU/DE/2384/2014

• T. Srinivasa Rao vs. T. Venkata Rangaiah and Anr. MANU/AP/0618/2006


 I NTRODUCTION
Rule 4A of Order 26 of the Code of Civil Procedure was introduced in the 1999 amendment to
the Code of Civil Procedure. This provision laid down for the appointment of a Local
Commissioner for the purposes of the pursuit of interests of justice or for the aid in the
expeditious disposal of a case or for any other purpose.2 The evidence so recorded by this Local
Commissioner shall be read in evidence as well. This ensures that the testimony offered by
witnesses to local commissioners is legitimate and not questionable under law. Though over the
years, there have been various contentions as to the validity of the appointment of said
commissioners. These contentions have been raised predominantly in cases where the Court had
appointed local commissioners to record evidence without taking into account the absence of
consent of the parties to the case.

This issue has existed since before the Amendment bringing in Rule 4A was enacted in 1999.
There were a multitude of instances where the courts used to refer entire recording of evidence in
suits to Local Commissioners without factoring in the consent of the parties. This was even done
in cases where the matters were not very old and/or there prevailed no special circumstances
which justified the action taken. The legal provision used to this was that of Chapter X-A of the
Delhi High Court (Original Side) Rules, 1967. This position was contested heavily by a host of
litigants and the court dealt with the issue in the cases of Deepak Kumar Vs Ashok K. Ghosh3,
Fashion Linkers v. Savitri Devi,4 B.N. Mullick & Ors. vs Sita Ram Mullick & Ors5 and Smt.
Pushpa Devi vs Smt. Bimla Devi And Ors.6 Though it should be noted that these cases
occurred before the passing of the amendment which introduced Rule 4A and dealt with the
appointment of LC under Chapter X-A of the Delhi High Court (Original Side) Rules, 1967.

With the introduction of Rule 4A, the same issue of law arose wherein the appointment of Local
Commissioners was challenged on grounds of absence of consent of the parties to the case. This

2 Order XXVI Rule 4A, Code of Civil Procedure.

3 1994 (30) DRJ 489

4 1995 (35) DRJ 195

5 AIR 1999 Delhi 153

6 2000 IIAD Delhi 404

issue was dealt with by a number of High Courts and the Supreme Court in the cases mentioned
above including those of H Dohil Constructions Co. (P) Ltd. vs. Rohit Lal7, and T. Srinivasa
Rao vs. T. Venkata Rangaiah and Anr.8

The researcher shall discuss the position of law and the decisions of the court on matters relating
to consent before the 1999 amendment was passed and then move on to discuss the jurisprudence
which developed around the amendment

7 MANU/DE/2384/2014.

8 MANU/AP/0618/2006.
 P OSITION BEFORE THE AMENDMENT
As discussed before, the question whether consent was required in appointing a local
commissioner had initially been decided in the case of Deepak Kapur vs Ashok K Ghose. 9 The
court held in this case that Chapter X-A of Delhi High Court (Original Side) Rules, 1967 existed
merely as a proviso or exception to power exercised by the Court under Order XXVI of the CPC.
The court also laid down that the said provision does not permit a “wholesale” delegation of the
function of the courts to examine witnesses and parties. There were multiple reasons which the
court took into account while reaching this decision, the primary ones being the powers vested in
judges by virtue of section 165 of the Evidence Act. These powers are essentially those which
enable the Judge to question the witness or to obtain proof of relevant fact. The court held that in
case of all the witnesses being examined on Commission, the ability of the Courts to exercise the
aforementioned power would be limited. There was also the reason that the court’s atmosphere
serves as a deterrent towards unscrupulous witnesses who may be prone to depose falsely. This
in addition to the fact that there is a basic assumption that the demeanor of the witness could be
better scrutinized and inspected by a Judge rather than a local commissioner. Thus, it was held by
the court that the examination of witnesses in court shall be considered a normal rule and a
departure should be made from it only in case of exceptional circumstances. It was further held
that delay in the disposal of a suit was a common feature in courts and if such a delay was to be
used as a ground to issue commission, then such a procedure would become a feature of any and
every suit. This position of law was further upheld in B. N. Mallick’s case.

This question arose again in the case of Fashion Linkers Vs. Savitri Devi, 10 where a division
bench agreed with the ratio laid down as under Deepak Kumar’s case that a commissioner coud
not be appointed without putting on record reasons for doing so. There existed no absolute
discretion to appoint a local commissioner without the recording of any reasons. These reasons
had to be given unless the parties consensually referred the matter to the local Commissioner.
Further, delegation of judicial functions to the commissioner was not a possible course of action
to take. For example, a commissioner could not reject any questions or answers and he did not
have the power to decide upon the admissibility of documents. The power of the commissioner

9 1994 (30) DRJ 489, para 13.

10 1995 (35) DRJ 195.

appointed under Chapter X-A was restricted by the procedure established under Order XXVI
Rue 16-A of the CPC.

Though the court also observed that Chapter X-A had been introduced in the Delhi HC due to
the time of the court being taken up for dealing with interlocutory and miscellaneous work and
an ever increasing number of interim applications were being filed, which caused a massive
amount of stagnation in trial of suits. The bench held that some radical new provision was
required in order to help with the clearance of the backlog of suits. It also noted that a growing
number of people were using laws for the purpose of defeating just rights and claims, hence the
introduction of Chapter X-A. The bench held that this particular provision had a definite purpose
and as a result it could not be afforded the treatment of an exception or a proviso to Order 26 of
the CPC. It was held that this rule could be invoked if the parties to the case agree to have
witnesses examined on commission, and this could be done even in cases which were not old.
Though if the suit was quite old and had been languishing without trial, then if the Court
appointed a Local Commissioner, then it can be understood to have been a proper exercise of the
court’s jurisdiction w.r.t the intention of the rule. Further, in situations where the suit was not old
or there was no consent on part of the parties, the Rule could still be invoked provided that there
existed a grave urgency in the matter or if the number of witnesses to be examined was too large.
Though the court also held along with all of the above that whenever the appointment of the
commissioner occurs without consent of the parties, then reasons have to be recorded. This was
the conclusion that the court reached in the Fashion Linker’s case. 11

This question was finally taken up in the case of Smt. Pushpa Devi vs Smt. Bimla Devi And Ors
12Where the court agreed with the findings laid down in the Fashion Linker’s case that the
circumstances required that something drastic be incorporated in order to deal with the extreme
circumstances that prevailed. The court further went on to disagree that the ratio of Deepak
Kapur’s case 13 that said that the rule was merely a proviso or an exception to order 26 of the
CPC. The court went on to say that the beginning part of Chapter X-A clearly states that it is to
apply “notwithstanding anything contained in Order 26 of the CPC”, it said that this itself made

11 1995 (35) DRJ 195, para 16

12 2000 IIAD Delhi 404 para

13 1994 (30) DRJ 489, para 13

clear that while practicing its powers under Chapter X-A the court is not circumscribed by limits
prescribed in Order 26 of the CPC. Under this particular rule, the court can also exercise its
power even for other reasons, which are not set out in Order 26, CPC, if it feels it necessary to do
so in its discretion. Though the court also noted that this provision did not provide an absolute
discretion to refer recording of evidence to a commissioner without the existence of any reasons
whatsoever. Recording of evidence by the court has to be normal rule/procedure. The
Examination of witnesses on commission needs to be an exception. The discretion so vested by
the rule is to be judicially exercised and for valid reasons and while practicing such discretion,
and these valid reasons need to be recorded in writing. The court also noted that while exercising
its discretion and referring evidence to the local commissioner, cannot further delegate any other
judicial powers to him/her. Thus anything which requires to court to deal with it cannot be
further delegated to the commissioner. For example- The power to allow or disallow question or
to decide objections or to decide relevancy cannot be further delegated to the Commissioner. The
provisions of Order 26, Rule 16-A still apply even though the court practices its power under
Chapter X-A.14

The court then moved on to discuss the matter of consent, where it held that the court should
refer the entire or part of the evidence to a Commissioner in situations where both parties consent
to the same. The court should only restrain from doing the same in case it has very strong reasons
to do so. If the consent of the parties exists, then even when the case is not old and there aren’t
any circumstances justifying it, the court can refer the matter to local commissioner.

Though in cases where a single or both parties do not consent, then the discretion has to be
exercised judicially and the reasons for doing so must be valid. The mere reason that the matter
is old or languishing would by itself not be a strong ground for the court to refer the recording of
evidence to a LC. How old a matter is or for how long it has been languishing in court would,
however be a valid ground to base the rejection of adjournments on. 15

14 Id para 20

15 1994 (30) DRJ 489 para 21.

The court, while citing a portion of the Fasion Linker’s Case,16 further held that in cases of such
nature, whenever a commissioner is appointed, it’s the duty of the court to monitor the case and
there may be a provision in the order appointing the Local Commissioner, which allows for the
court to monitor the case every three months or for whatever intervals of time they see fit. The
court would then be able to resolve any problems that it may find. The court can further award
costs in case it finds one of the parties unreasonably obstructing evidence. The court can also,
while monitoring the case, change the local commissioner in case he is not active or has other
valid reasons for not completing his work. The court then went on to state that it had made the
aforementioned observations as it had come to notice that in a few cases where LCs were
appointed, parties of the LC would be extremely relaxed for years and the court had no
information about the same, and by the time the curt was appraised of the situation, it would be
too late.

There were practical implications to be considered in the appointments of LCs as well. If they
are appointed in too many cases, then there arises a question whether the HC, which is as it is
limited by it staff, will be able to cope up with the issue of sending its officers to aid the LC in
maintaining and keeping the Court records. The court observed that by referring to the acute
need of a monitoring system and passing incidental order, the court does not mean to be
interfering with judicial discretion that might be exercised in certain cases.

The court proceeded to make some final observations along the lines of the Fashion Linker’s
Case and held that in case the Judge feels the need for some other procedural aspect or safeguard
is required, the he or she is always at liberty to make the addition. Lastly, the court held that
even though it is not necessary it must be mentioned that this Order would not make void any
Orders, already passed, referring recording of evidence to Commissioners under Chapter X-A
nor the evidence already recorded pursuant to such orders and thus referred the matter back to
the division bench for them to make a decision on merits in accordance with law.17

16 1995 (35) DRJ 195, para 17.

17 Id at para 19.
 P OSITION A FTER THE AMENDMENT
The 1999 amendment to the Code of Civil Procedure introduced Rule 4A to the code. Order
XXVI deals with the appointment of Local Commissioners. Rule 4A allows for the appointment
of LC for the purpose of recording evidence in any suit of any person resident within the local
limits of the Court’s jurisdiction, in the interests of justice or for the expeditious disposal of the
case or for any other reason.

Though as mentioned earlier in this paper, there have been many instances in the past where
courts indulge in wholesale delegation of recording of evidence. This trend has only been on the
rise under Rule 4A. The researcher shall now discuss various case law that exists on this
particular topic.

The leading case law on the subject is that of H. Dohil Constructions Co. (P) Ltd. vs. Rohit Lal.18
The facts of the case are that an order dated 06.11.2013 of the Additional District Judge (ADJ)
which appointed a Local Commissioner for recording of evidence in the Court room between 4
and 6 pm on six consecutive dates. The order was passed in the presence of counsel and an
amount of Rs. 2,500/- was directed to be paid to the Local Commissioner (including stationery
and typing charges) for each sitting and Rs. 400/- as diet money to the Reader who would sit in
Court after court hours to assist in the proceedings. While dismissing the petitioner's application
under Order 18 Rule 5 read with Section 151 CPC, the subsequent order dated 07.02.2014
confirms the previous one. By the said application, the petitioner had pleaded that

(i) the Local4Commissioner was4suo moto4by the4Court and4was not4sought by4either

of4the parties4;

(ii) It4expressed their4concern and4desire that4the evidence4of the4witnesses4be recorded4in

the4Court in4the presence4of the4learned Judge4under Order418 Rule45 of4the
Code4of Civil4Procedure;

(iii) That4the defendants4too had4so desired4by expressing4their 'no4objection' to4the

aforesaid4application;

(iv) That4appointment of4Local Commissioner4could be4done only4under Order426

when4the occasion4and justification4for it4arises and4, finally4

18 MANU/DE/2384/2014.
(v) That4the additional4costs towards4Local Commissioner's4fees and4diet money4was
unwarranted4.19

Therefore, the petitioner argued, the order of appointment of Local Commissioner ought to be
set aside. The counsel for petitioner referred to ratio laid down in the case of T. Srinivasa Rao vs
T. Venkata Rangaiah And Anr 20 where the facts were that the 1st respondent filed a petition
against his brother and their mother, the 2nd respondent, for the relief of partition and separate
possession of the suit schedule property. The trial of the suit commenced. The 1st respondent
filed an affidavit, in lieu of chief-examination as PW-1, and filed Exs.A-1 to A-19 as documents.
An Advocate-Commissioner was appointed to record his cross-examination. On behalf of the 1st
respondent herein, it was urged that a compromise had emerged between the parties and the
cross-examination of PW-1 must be restricted only to the contents and outcome of such
compromise, and not to other aspects. The petitioner objected to the same. The trial Court
overruled the objection and accepted the contention of the 1st respondent herein, and this led to
the appeal in front of the High Court. The ratio that was laid down in this case was the following
-

“6. Time and again this Court cautioned the trial Courts, not to appoint Commissioners
for recording cross-examination of witness, as a matter of course. The effect of permitting
the witnesses to file affidavits in lieu of chief-examination, resulting in denial of
opportunity of the Courts, to appreciate and assess the demeanour of witnesses; was
pointed. In fact, amendment of Order 18 Rule 4 C.P.C., to the effect that the only mode of
chief-examination shall be through filing of affidavits, had its own implications, on the
adjudication of the suit, notwithstanding the time it had saved, for the Courts in the
process. Be that as it may, the Parliament did not intend appointment of Commissioners
for recording of cross-examination, as a matter of course. The question as to whether
recourse should be had to, such a measure; would depend upon the pressure of work in
the Court, the condition of witness, i.e. the difficulty for him to appear before the Court,
the nature of questions that may crop up during cross-examination, such as, the occasion

19 MANU/DE/2384/2014 para 3.

20 MANU/AP/0618/2006.
 to overrule to sustain any objections, determination as to the admissibility and relevancy
of documents, etc.

7. Appointment of Commissioners to record the cross-examination of an otherwise able

witness, is prone to weaken the very adjudicatory process, and it would naturally tell
upon the quality of adjudication. The tendency, which would encourage the Courts, to
avoid one after the other facets of adjudication, is likely to increase. The logical
extension of such a course would be, to search for devises, excuses, or shortcuts, for
disposal of the suits, without actually examining the issues, appreciating the evidence or
undertaking discussion. Each and every step in the adjudicatory process has its own
impact on the ultimate outcome. It must not be forgotten that adjudication by Courts is
respected, on account of various stages involved in it, and with the deletion of one or
more of such steps, the credibility of the entire system would receive a dent.” 21

After taking into account the various contentions raised by both parties, the court stated that it
was conscious of the fact that during cross recording and re-examination, the demeanor of the
victim needs to be assessed and appreciated. While the recording of evidence of a witness in
attendance is generally permissible to be done by a local commissioner, the Court, during the
course of such examination, would not, as a matter of routine, deny to itself the important aspect
of appreciation and assessment of the demeanor of the witnesses. Doing so would lead to the
weakening of the adjudicatory process. The essential procedures and processes cannot as a
matter of fact always be delegated to the LC. A mundane ministerial recording of evidence could
be the objective of permitting recording of evidence through LC, provided that the appointment
so made is justified under the provisions of the statute in the select circumstances that are
contemplated. The court further stated that caution should be observed while delegating essential
aspects of the trial to LC. These include the formation of expression, view, appreciation of
evidence or demeanor of witnesses or an opinion. The courts would justifiably retain exclusive
control over such aspects of the trial. The recording of evidence by LC must not be resorted to as
a matter of routine.22

21 Id para 6.

22 MANU/DE/2384/2014
Further, in matter regarding consent, the court held that where both parties to a case prefer the
evidence to be recorded in the presence of a learned judge in the premises of the court, and in
addition, there is an objection raised to the imposition of a financial burden on the parties, then
the trial court is under an obligation to review and recall the order of appointing the LC. Faith4in
the4judicial adjudicatory4process is4affirmed and4enhanced when4litigants observe4the
conclusion4of proceedings4in the4Court4and return4with impression4that a4fair and4equitable
procedure4as known4to law4, had4been adopted4. There4can be4no better4"fair4process"4than
the4proceedings conducted4in the4open Court4. It4cannot be4read as4the objective4of
the4legislation to4impose costs4on unwilling4or economically4incapable parties4for
the4appointment of4Local Commissioner4, howsoever4small or4large that4cost may4be, if4the
parties4so object4. The4legal process4would not4condone a4methodology4which tends4to
weaken4either the4representation or4the case4of a4party before4a court4of law4because
of4comparative financial4weakness.23

Imposition4of a4monetary4burden can4be cast4upon a4person only4by4sanction of4law

and4not by4the Trial4Court where4the litigants4raise an4objection to4the alternative4procedure
adopted4. Although4, the4Trial Court's4concern apropos4pendency4of cases4and the4reasoning
for4expeditious disposal4of the4case cannot4be faulted4and the4disposition of4counsel,4in
certain4circumstances,4may well4be deemed4obstructive,4but the4order itself4resulting4in
the4appointment of4the Local4Commissioner and4the cost4imposed would4be unjustified4when
there4is opposition4to such4appointment or4is deemed4unwarranted.4Any procedure4adopted
by4the lower4courts which4tends to4weaken the4faith of4the public4in the4judicial
adjudicatory4mechanism as4per legally4defined procedure4, would4be susceptible4to the4High
Courts'4intervention in4its supervisory4and revisionary4jurisdiction.4For the4aforestated
reasons4, the4Court was4of the4view that4the impugned4order appointing4the LC4suffers
from4material irregularity4and ought4to be4and is4accordingly set4aside. 24

23 Id para 6.

24 MANU/DE/2384/2014 para 7.
 C ONCLUSION
The researcher has discussed extensively the legal position of law on the point of appointment of
local commissioner for recording of evidence. The position was affected by the introduction of
rule 4A under order 26 of the Code of Civil Procedure. The research question posed in this paper
was that whether or not the courts are empowered to appoint a Local commissioner to record the
entire evidence without the consent of the parties to the dispute.

Over the years, different provisions have been applied to appoint the commissioner, and change
in them have inevitably impacted the position of law on the same as well. Prior to the 2004
amendment, the Chapter X-A of the Delhi High Court (Original Side) Rules, 1967 were used to
take the aforementioned step of appointment of commissioner. The law on the matter was finally
settled in the case of Smt. Pushpa Devi vs Smt. Bimla Devi And Ors. where the court essentially
laid down that such a process is not a norm and that a monitoring mechanism needs to be put in
place in order to prevent abuse of process. It also laid down that the practical implications need
to be considered as the courts are understaffed as it is and appointment of commissioners will put
an even bigger burden on them. Though with regard to consent the court held that in cases where
a single or both parties do not consent, then the discretion has to be exercised judicially and the
reasons for doing so must be valid.

With regard to the law after the amendment was passed, the case of H Dohil Constructions Co.
(P) Ltd. vs. Rohit Lal settled the matter and laid down that habitually appointing LCs in cases
where the consent of parties is absent weakens the faith of the people that is enjoyed by the
judiciary as the appointment requires the payment of costs as well. The cost that is
imposed4imposed would4be unjustified4when there4is opposition4to such4appointment. It
makes access to justice also skewed in favor of those who can afford the same. The disparity
created along the lines of financial capability where only a person who can afford it will get
justice, will end up diluting justice and the faith that people have in the judiciary and hence
consent is a requirement in the appointing of LCs. Any such step taken by the lower courts is
susceptible to be reviewed by the High Vourt and liable to be struck down in the interests of
justice.

Thus, the court cannot appoint LCs without the consent of the parties is the position of law as it
stands in the present day.